As filed with the Securities and Exchange Commission on November 14, 1996
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
RAC FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
NEVADA 75-2561052
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1250 WEST MOCKINGBIRD LANE
DALLAS, TEXAS 75247
(Address of principal executive offices) (Zip Code)
-----------------------
1995 EMPLOYEE STOCK OPTION PLAN FOR RAC FINANCIAL GROUP, INC.
1995 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN FOR RAC FINANCIAL GROUP, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN FOR RAC FINANCIAL GROUP, INC.
STOCK OPTION AGREEMENT FOR DAN MARINO
STOCK OPTION AGREEMENT FOR CHARLES T. OWENS
STOCK OPTION AGREEMENT FOR RALPH STRINGER
(Full title of the plans)
-----------------------
RONALD BENDALIN, ESQ. COPY TO:
GENERAL COUNSEL RONALD J. FRAPPIER, ESQ.
RAC FINANCIAL GROUP, INC. JENKENS & GILCHRIST
1250 WEST MOCKINGBIRD LANE A PROFESSIONAL CORPORATION
DALLAS, TEXAS 75247 1445 ROSS AVENUE, SUITE 3200
(214)630-6006 DALLAS, TEXAS 75202
(Name, address and telephone number
including area code of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) (2) PER SHARE (3) PRICE (3) FEE (3)
<S> <C> <C> <C> <C>
Common Stock, 875,000 SHARES $26.84 $23,487,925 $7,118
$0.01 par value per
share
======================= ======================= ======================= ======================= ======================
<FN>
(1) The securities to be registered include 550,000 shares reserved for
issuance under the 1995 Employee Stock Option Plan of the registrant;
50,000 shares reserved for issuance under the 1995 Nonemployee Director
Stock Option Plan of the registrant; 250,000 shares reserved for
issuance under the 1995 Employee Stock Purchase Plan of the registrant;
and an aggregate of 25,000 shares reserved for issuance under the
individual stock option agreements listed above (collectively, the
"Plans").
(2) Pursuant to Rule 416, this Registration Statement is deemed to include
additional shares of Common Stock issuable under the terms of the Plans
to prevent dilution resulting from any future stock split, stock
dividend or similar transaction.
(3) Calculated pursuant to Rule 457(c) and (h).
</FN>
</TABLE>
CORPDAL:56078.4 28835-00004
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) The Company's prospectus filed with the commission pursuant to Rule
424(b) under the Act, dated February 1, 1996.
(2) The Company's Quarterly Report on Form 10-Q filed with the
Commission for the quarter ended March 31, 1996.
(3) The Company's Quarterly Report on Form 10-Q filed with the
Commission for the quarter ended June 30, 1996.
(4) The Company's report on Form 8-K filed with the Commission on
June 14, 1996.
(5) The Company's report on Form 8-K filed with the Commission on
August 12, 1996.
(6) The Company's report on Form 8-K/A filed with the Commission
on August 16, 1996.
(7) The description of the common stock, par value $0.01 per share (the
"Common Stock"), of the Company set forth in the Registration Statement on Form
8-A, dated January 15, 1996.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Articles of Incorporation of the Registrant, together with its
bylaws, provide that the Registrant shall indemnify officers and directors, and
may indemnify its other employees and agents, to the fullest extent permitted by
law. The laws of the State of Nevada permit, and in some cases require,
corporations to indemnify officers, directors, agents and employees who are or
have been a party to or are threatened to be made a party to litigation against
judgments, fines, settlements and reasonable expenses under certain
circumstances.
(b) The Registrant has also adopted provisions in its Articles of
Incorporation that limit the liability of its directors and officers to the
fullest extent permitted by the laws of the State of Nevada. Under the
Registrant's Articles of Incorporation, and as permitted by the laws of the
State of Nevada, a director or officer is not liable to the Registrant or its
stockholders for damages for breach of fiduciary duty. Such limitation of
liability does not affect liability for (i) acts or omissions that involve
intentional misconduct, fraud or a knowing violation of the law, or (ii) the
payment of any unlawful distribution.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The restricted securities to be reoffered or resold pursuant to this
Registration Statement were issued without registration because such securities
were granted, without consideration, to the recipient and therefor the issuance
did not require an investment decision or involve the sale of a security.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
CORPDAL:56078.4 28835-00004
<PAGE>
Exhibit Description of Exhibit
4.1* 1995 Employee Stock Option Plan for RAC Financial Group,
Inc. (Exhibit 10.4)
4.2* 1995 Nonemployee Director Stock Option Plan for RAC
Financial Group, Inc. (Exhibit 10.5)
4.3* 1995 Employee Stock Purchase Plan for RAC Financial
Group, Inc. (Exhibit 10.6)
4.4* Amended and Restated Articles of Incorporation of the
Company (Exhibit 3.1)
4.5* Amended and Restated Bylaws of the Company (Exhibit 3.2)
4.6* Specimen certificate for common stock of the Company
(Exhibit 4)
4.7 Stock Option Agreement for Dan Marino
4.8 Stock Option Agreement for Charles T. Owens
4.9 Stock Option Agreement for Ralph Stringer
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in their opinion filed as
Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this
registration statement)
- ----------------
* Filed as the exhibit shown in parenthesis contained in the
Company's Registration Statement on Form S-1 (No. 33-96688)
effective February 1, 1996, incorporated herein by reference.
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
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;
(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; and
(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
CORPDAL:56078.4 28835-00004
<PAGE>
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 of 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.
CORPDAL:56078.4 28835-00004
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing 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 Dallas, Texas, on November 13, 1996:
RAC FINANCIAL GROUP, INC.
By: /s/ Daniel T. Phillips
Daniel T. Phillips
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby
constitutes and appoints Daniel T. Phillips and Eric C. Green, and each of them,
each with full power to act without the other, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto each of 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 connection therewith, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming that each of said attorneys-in-fact and agents or his 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 included:
SIGNATURE CAPACITY DATE
/s/ Daniel T. Phillips Chairman of the Board, November 13, 1996
- ----------------------- President and Chief
Daniel T. Phillips Executive Officer
/s/ Eric C. Green Executive Vice President, November 13,, 1996
- --------------------------- and Chief Financial Officer
Eric C. Green (Principal Financial and
Accounting Officer)
/s/ Gene O'Bryan Executive Vice President November 13, 1996
- --------------------------- and Chief Production Officer
Gene O'Bryan
/s/ John Fitzgerald Director November 12, 1996
- ---------------------
John Fitzgerald
/s/ Dan Jessee Director November 13, 1996
- --------------------
Dan Jessee
Director
- --------------------
Paul Seegers
/s/ Sheldon I. Stein Director November 13, 1996
- ---------------------------
Sheldon I. Stein
CORPDAL:56078.4 28835-00004
<PAGE>
INDEX TO EXHIBITS
Exhibit Description of Exhibit
4.1* 1995 Employee Stock Option Plan for RAC Financial
Group, Inc. (Exhibit 10.4)
4.2* 1995 Nonemployee Director Stock Option Plan for RAC
Financial Group, Inc. (Exhibit 10.5)
4.3* 1995 Employee Stock Purchase Plan for RAC Financial
Group, Inc. (Exhibit 10.6)
4.4* Amended and Restated Articles of Incorporation of the
Company (Exhibit 3.1)
4.5* Amended and Restated Bylaws of the Company
(Exhibit 3.2)
4.6* Specimen certificate for common stock of the Company
(Exhibit 4)
4.7 Stock Option Agreement for Dan Marino
4.8 Stock Option Agreement for Charles T. Owens
4.9 Stock Option Agreement for Ralph Stringer
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in their opinion filed as
Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this
registration statement)
- ----------------
* Filed as the exhibit shown in parenthesis contained in the
Company's Registration Statement on Form S-1(No. 33-96688)
effective February 1, 1996, incorporated herein by reference.
CORPDAL:56078.4 28835-00004
NONQUALIFIED STOCK OPTION AGREEMENT
RAC FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Thirteen
Thousand Five Hundred (13,500) shares (the "Shares") of common stock, par value
$0.01 per share (the "Common Stock"), of RAC Financial Group, Inc. (the
"Company"), is hereby granted to
DAN MARINO
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $25.50 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: (i) 4,500 shares upon execution of this Option Agreement, (ii)
4,500 shares on April 17, 1997, and (iii) 4,500 shares on April 18, 1998. The
Company may in its sole discretion accelerate the date on which this 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
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
CORPDAL:57920.1 28835-00003
<PAGE>
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 or 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.
(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
CORPDAL:57920.1 28835-00003
<PAGE>
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 Plan and 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), 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 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, (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 or
consulting contract or advisory services, as the case may be,
with the Company or a subsidiary for cause;
CORPDAL:57920.1 28835-00003
<PAGE>
(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 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-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
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
CORPDAL:57920.1 28835-00003
<PAGE>
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, 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. 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.
CORPDAL:57920.1 28835-00003
<PAGE>
(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
CORPDAL:57920.1 28835-00003
<PAGE>
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
CORPDAL:57920.1 28835-00003
<PAGE>
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: RAC FINANCIAL GROUP, INC.
April 17, 1996
By: /s/ Daniel T. Phillips
Address: Name: Daniel T. Phillips
Title: President
1250 W. Mockingbird Lane
Dallas, Texas 75247-4902
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
CORPDAL:57920.1 28835-00003
<PAGE>
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/ Dan Marino
DAN MARINO, Optionee
Address:
CORPDAL:57920.1 28835-00003
NONQUALIFIED STOCK OPTION AGREEMENT
RAC FINANCIAL GROUP, INC.
This Agreement replaces any Option Agreement previously granted to
Employee. A Nonqualified Stock Option (the "Option") for a total of Ten Thousand
(10,000) shares (the "Shares") of common stock, par value $0.01 per share (the
"Common Stock"), of RAC Financial Group, Inc. (the "Company"), is hereby granted
to
CHARLES T. OWENS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $29.00 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 in equal one-third shares on the first, second and third anniversaries of
the date of grant. The Company may in its sole discretion accelerate the date on
which this 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
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
CORPDAL:57914.1 28835-00003
<PAGE>
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 or 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.
(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
CORPDAL:57914.1 28835-00003
<PAGE>
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 Plan and 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), 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 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, (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 or
consulting contract or advisory services, as the case may be,
with the Company or a subsidiary for cause;
(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 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
CORPDAL:57914.1 28835-00003
<PAGE>
thirty-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
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
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
CORPDAL:57914.1 28835-00003
<PAGE>
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, 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. 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.
CORPDAL:57914.1 28835-00003
<PAGE>
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.
CORPDAL:57914.1 28835-00003
<PAGE>
(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.
CORPDAL:57914.1 28835-00003
<PAGE>
(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: RAC FINANCIAL GROUP, INC.
June 1, 1996
By:
Address: Name: Daniel T. Phillips
Title: President
1250 W. Mockingbird Lane
Dallas, Texas 75247-4902
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:
CHARLES T. OWENS, Optionee
Address:
CORPDAL:57914.1 28835-00003
NONQUALIFIED STOCK OPTION AGREEMENT
RAC FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of One Thousand
Five Hundred (1,500) shares (the "Shares") of common stock, par value $0.01 per
share (the "Common Stock"), of RAC Financial Group, Inc. (the "Company"), is
hereby granted to
RALPH STRINGER
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $25.50 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: (i) 500 shares upon execution of this Option Agreement, (ii)
500 shares on April 17, 1997, and (iii) 500 shares on April 17, 1998. The
Company may in its sole discretion accelerate the date on which this 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
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
CORPDAL:57921.1 28835-00003
<PAGE>
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 or 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.
(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
CORPDAL:57921.1 28835-00003
<PAGE>
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 Plan and 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), 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 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, (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 or
consulting contract or advisory services, as the case may be,
with the Company or a subsidiary for cause;
CORPDAL:57921.1 28835-00003
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(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 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-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
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
CORPDAL:57921.1 28835-00003
<PAGE>
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, 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. 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.
CORPDAL:57921.1 28835-00003
<PAGE>
(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
CORPDAL:57921.1 28835-00003
<PAGE>
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
CORPDAL:57921.1 28835-00003
<PAGE>
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: RAC FINANCIAL GROUP, INC.
April 17, 1996
By: /s/ Daniel T. Phillips
Address: Name: Daniel T. Phillips
Title: President
1250 W. Mockingbird Lane
Dallas, Texas 75247-4902
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.
CORPDAL:57921.1 28835-00003
<PAGE>
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/ Ralph Stringer
RALPH STRINGER, Optionee
Address:
CORPDAL:57921.1 28835-00003
RAC Financial Group, Inc.
November 14, 1996
Page 1
November 14, 1996
RAC Financial Group, Inc.
1250 W. Mockingbird Lane
Dallas, Texas 75247
RE: RAC FINANCIAL GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
This firm has acted as special counsel to RAC Financial Group, Inc., a
Nevada corporation (the "Company"), in connection with the preparation of the
Company's Registration Statement on Form S-8 (the "Registration Statement") to
be filed with the Securities and Exchange Commission, under the Securities Act
of 1933, as amended (the "Securities Act"), relating to an aggregate of 875,000
shares (the "Shares") of common stock, $0.01 par value per share (the "Common
Stock"), of the Company that may be issued by the Company pursuant to the
exercise of incentive and/or nonqualified stock options ("Options") granted or
that may be granted under the plans and agreements included in the Registration
Statement (collectively, the "Plans").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, this firm has
examined and relied upon the original, or copies identified to its satisfaction,
of (1) the Amended and Restated Articles of Incorporation and the Amended and
Restated Bylaws of the Company; (2) minutes and records of the corporate
proceedings of the Company with respect to the establishment of the Plans and
related matters; (3) the Registration Statement and exhibits thereto, including
the Plans; and (4) such other documents and instruments as this firm has deemed
necessary for the expression of the opinions contained herein.
In making the foregoing examinations, this firm has assumed the
genuineness of all signatures and the authenticity of all documents submitted to
this firm as originals, and the conformity to original documents of all
documents submitted to this firm as certified or photostatic copies. As to
various questions of fact material to this opinion, and as to the content and
form of the minutes, records, resolutions and other documents or writings of the
Company, this firm has relied, to the extent it deems reasonably appropriate,
upon representations of officers or directors of the Company and upon documents,
records and instruments furnished to the firm by the Company, without
independent check or verification of their accuracy.
CORPDAL:57804.1 28835-00011
<PAGE>
RAC Financial Group, Inc.
November 14, 1996
Page 2
Based upon this firm's examination, consideration of, and reliance on
the documents and other matters described above, and subject to the assumptions
noted below, this firm is of the opinion that the Company presently has
available a sufficient number of shares of authorized but unissued and/or
treasury shares of Common Stock from which may be issued the Shares of Common
Stock proposed to be sold pursuant to the exercise of Options. Assuming that
(1) the outstanding Options are duly granted, and the
Options to be granted in the future will be duly granted in accordance
with the terms of the respective Plan;
(2) the Company maintains an adequate number of authorized but
unissued shares and/or treasury shares of Common Stock available for
issuance to those persons who exercise Options; and
(3) the consideration for shares of Common Stock issued
pursuant to the exercise of each Option is actually received by the
Company as provided in the respective Plans and exceeds the par value
of such shares;
then the Shares of Common Stock that may be issued in accordance with the terms
of the Plans pursuant to the exercise of Options will be, when and if issued,
duly and validly issued, fully paid and nonassessable.
This firm hereby consents to the filing of this opinion as an exhibit
to the Registration Statement and to references to this firm included in or made
a part of the Registration Statement.
CORPDAL:57804.1 28835-00011
<PAGE>
RAC Financial Group, Inc.
November 14, 1996
Page 3
In giving this consent, this firm does not admit that it comes within
the category of person whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Sincerely,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ Ronald J. Frappier
Ronald J. Frappier
Authorized Signatory
RJF/kc
CORPDAL:57804.1 28835-00011
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 to be filed on or about November 14, 1996) pertaining to the 1995 Employee
Stock Option Plan for RAC Financial Group, Inc., the 1995 Nonemployee Director
Stock Option Plan for RAC Financial Group, Inc., the 1995 Employee Stock
Purchase Plan for RAC Financial Group, Inc., the Stock Option Agreement for Dan
Marino, the Stock Option Agreement for Charles T. Owens, and the Stock Option
Agreement for Ralph Stringer, our report dated October 16, 1995, except for Note
17, as to which the date is November 30, 1995 with respect to the consolidated
financial statements for the year ended September 30, 1995 included in the
Registration Statement (Form S-1 No. 33-96688), filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Dallas, Texas
November 12, 1996
CORPDAL:57928.1 28835-00003
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