<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 7, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
FIRSTPLUS FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
NEVADA 75-2561085
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1600 VICEROY, 8TH FLOOR
DALLAS, TEXAS 75238
(Address of principal executive offices) (Zip Code)
--------------------------
STOCK OPTION AGREEMENT FOR KRISTIN ANDRADE-REITZ
STOCK OPTION AGREEMENTS FOR JAMES CAPRETZ
STOCK OPTION AGREEMENTS FOR DAVID KAGNOFF
STOCK OPTION AGREEMENT FOR JAVIER S. LLANES
STOCK OPTION AGREEMENTS FOR MICHAEL MCGUIRE
STOCK OPTION AGREEMENTS FOR GUSTAVO L. MENDOZA
STOCK OPTION AGREEMENT FOR DENISE ORCHARD
STOCK OPTION AGREEMENTS FOR MARIE A. REICH
STOCK OPTION AGREEMENTS FOR JAMES RICH
STOCK OPTION AGREEMENTS FOR BARRY WILLIAMS
(Full title of the plans)
--------------------------
RONALD M BENDALIN, ESQ.
GENERAL COUNSEL
FIRSTPLUS FINANCIAL GROUP, INC.
1600 VICEROY, 8TH FLOOR
DALLAS, TEXAS 75238
(Name and address of agent for service)
(214) 599-6400
(Telephone number, including area code, of agent for service)
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED(1) PER SHARE(2)(3) PRICE(2)(3) FEE(3)
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per share..... 125,000 Shares $28.50 $1,975,605.00 $599.00
</TABLE>
(1) The securities to be registered include an aggregate of 125,000 shares
reserved for issuance under the individual stock option agreements listed
above (collectively, the "Plans").
(2) Estimated solely for purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h) solely for the purposes of
computing the registration fee, based upon the following:
<TABLE>
<CAPTION>
NUMBER OF
OPTIONS GRANTED OPTION PRICE
- ----------------- -------------
<S> <C>
4,484 $ 5.57
6,797 $ 6.00
1,765 $ 6.36
22,915 $ 6.63
13,689 $ 6.69
9,901 $ 7.42
3,682 $ 7.94
11,765 $ 10.83
50,000 $ 28.50
</TABLE>
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- --------------------------------------------------------------------------------
<PAGE>
PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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 Annual Report on Form 10-K filed with the Commission for
the fiscal year ended September 30, 1997.
(3) The Company's Current Report on Form 8-K filed with the Commission on
December 19, 1996.
(4) The description of the Common Stock of the Company set forth in the
Registration Statement on Form 8-A, dated January 15, 1996, filed with the
Commission, including any amendment or report filed for the purpose of updating
such description.
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 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
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
- ------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
<PAGE>
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.
None.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this registration
statement.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF EXHIBIT
- ----------- ----------------------------------------------------------------------------------------------------
<C> <S>
4.1* Amended and Restated Articles of Incorporation of the Company (Exhibit 3.1)
4.2* Amended and Restated Bylaws of the Company (Exhibit 3.2)
4.3* Specimen certificate for common stock of the Company (Exhibit 4)
4.4 Stock Option Agreement for Kristin Andrade-Reitz
4.5 Stock Option Agreements for James Capretz
4.6 Stock Option Agreements for David Kagnoff
4.7 Stock Option Agreement for Javier S. Llanes
4.8 Stock Option Agreements for Michael McGuire
4.9 Stock Option Agreements for Gustavo L. Mendoza
4.10 Stock Option Agreement for Denise Orchard
4.11 Stock Option Agreements for Marie A. Reich
4.12 Stock Option Agreements for James Rich
4.13 Stock Option Agreements for Barry Williams
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)
</TABLE>
- ------------------------
* 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 of 1933, 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
2
<PAGE>
(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 of 1933, 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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 January 7, 1998:
<TABLE>
<S> <C> <C>
FIRSTPLUS FINANCIAL GROUP, INC.
By: /s/ DANIEL T. PHILLIPS
-----------------------------------------
Daniel T. Phillips
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below hereby constitutes and appoints Daniel T. Phillips, Eric C. Green and
Ronald M Bendalin, 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates included:
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ DANIEL T. PHILLIPS Chief Executive Officer
- ------------------------------ (Principal Executive January 7, 1998
Daniel T. Phillips Officer)
/s/ ERIC C. GREEN
- ------------------------------ President and Director January 7, 1998
Eric C. Green
/s/ WILLIAM BENAC Chief Financial Officer
- ------------------------------ (Principal and January 7, 1998
William Benac Accounting Officer)
/s/ JOHN FITZGERALD
- ------------------------------ Director January 7, 1998
John Fitzgerald
/s/ DAN JESSEE
- ------------------------------ Director January 7, 1998
Dan Jessee
/s/ PAUL NUSSBAUM
- ------------------------------ Director January 7, 1998
Paul Nussbaum
/s/ PAUL SEEGERS
- ------------------------------ Director January 7, 1998
Paul Seegers
/s/ SHELDON I. STEIN
- ------------------------------ Director January 7, 1998
Sheldon I. Stein
4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF EXHIBIT
- ----------- ------------------------------------------------------------------------------------------------------
<S> <C>
4.1* Amended and Restated Articles of Incorporation of the Company (Exhibit 3.1)
4.2* Amended and Restated Bylaws of the Company (Exhibit 3.2)
4.3* Specimen certificate for common stock of the Company (Exhibit 4)
4.4 Stock Option Agreement for Kristin Andrade-Reitz
4.5 Stock Option Agreements for James Capretz
4.6 Stock Option Agreements for David Kagnoff
4.7 Stock Option Agreement for Javier S. Llanes
4.8 Stock Option Agreements for Michael McGuire
4.9 Stock Option Agreements for Gustavo L. Mendoza
4.10 Stock Option Agreement for Denise Orchard
4.11 Stock Option Agreements for Marie A. Reich
4.12 Stock Option Agreements for James Rich
4.13 Stock Option Agreements for Barry Williams
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)
</TABLE>
- ------------------------
* 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.
5
<PAGE>
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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND FOUR
HUNDRED SIXTEEN (1,416) 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
JAMES CAPRETZ
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.69 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Capretz
----------------------------------------
James Capretz, Optionee
Address:
5000 Birch Street
Suite 2500
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND FOUR
HUNDRED SIXTEEN (1,416) 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
JAMES CAPRETZ
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.94 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Capretz
---------------------------------------
James Capretz, Optionee
Address:
5000 Birch Street
Suite 2500
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of THREE HUNDRED
FIFTY-THREE (353) 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
JAMES CAPRETZ
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.36 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Capretz
---------------------------------------
James Capretz, Optionee
Address:
5000 Birch Street
Suite 2500
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
SEVENTY-FOUR (974) 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
JAMES CAPRETZ
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Capretz
---------------------------------------
James Capretz, Optionee
Address:
5000 Birch Street
Suite 2500
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of TWO THOUSAND
EIGHT HUNDRED THIRTY-TWO (2,832) 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
JAMES CAPRETZ
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Capretz
---------------------------------------
James Capretz, Optionee
Address:
5000 Birch Street
Suite 2500
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND
EIGHT HUNDRED EIGHTY-EIGHT (1,888) 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
JAMES CAPRETZ
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Capretz
---------------------------------------
James Capretz, Optionee
Address:
5000 Birch Street
Suite 2500
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
FORTY-FOUR (944) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
-----------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR HUNDRED
SEVENTY-TWO (472) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
---------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR HUNDRED
SEVENTY-TWO (472) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
---------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
FORTY-FOUR (944) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.69 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
--------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND ONE
HUNDRED THIRTY-THREE (1,133) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of THREE HUNDRED
FIFTY-THREE (353) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.36 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
-------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
SEVENTY-FOUR (974) 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
DAVID KAGNOFF
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
-------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND
EIGHT HUNDRED EIGHTY-EIGHT (1,888) 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
DAVID KAGNOFF
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ David Kagnoff
------------------------
David Kagnoff, Optionee
Address:
#3 Rocky Point Road
Corona del Mar, CA 92625
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR HUNDRED
SEVENTY-TWO (472) 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
JAVIER LLANES
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Javier Llanes
------------------------------
Javier Llanes, Optionee
Address:
310 E. Pinehurst Ave.
La Habra, CA 90631
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of THREE HUNDRED
FIFTY-THREE (353) 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
MICHAEL MCGUIRE
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.36 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Michael McGuire
---------------------------
Michael McGuire, Optionee
Address:
6738 E. Canyon Ridge
Orange, CA 92869
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of TWO THOUSAND FOUR
HUNDRED THIRTY-SIX (2,436) 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
MICHAEL MCGUIRE
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Michael McGuire
-----------------------------
Michael McGuire, Optionee
Address:
6738 E. Canyon Ridge
Orange, CA 92869
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of SIX THOUSAND
SEVEN HUNDRED NINETY-SEVEN (6,797) 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
MICHAEL MCGUIRE
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.00 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 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Michael McGuire
----------------------------
Michael McGuire, Optionee
Address:
6738 E. Canyon Ridge
Orange, CA 92869
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND
EIGHT HUNDRED EIGHTY-EIGHT (1,888) 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
MICHAEL MCGUIRE
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Michael McGuire
----------------------------
Michael McGuire, Optionee
Address:
6738 E. Canyon Ridge
Orange, CA 92869
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FIFTEEN THOUSAND
THREE HUNDRED SIXTY-THREE (15,363) 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
MICHAEL MCGUIRE
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Michael McGuire
---------------------------------
Michael McGuire, Optionee
Address:
6738 E. Canyon Ridge
Orange, CA 92869
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of 50,000 shares
(the "Shares") of common stock, par value $0.01 per share (the "Common Stock"),
of FIRSTPLUS Financial Group, Inc. (the "Company"), is hereby granted to
MICHAEL W. MCGUIRE
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $28.50 for each Share.
SECTION 2. EXERCISE OF THE OPTION. This Option may be exercised at any
time and from time to time during the term of this Option, in whole or in part
with respect to Shares that have vested. Shares subject to this Option shall
vest as follows: 1/3 on the date of grant, 1/3 on the first anniversary of the
date of grant, and 1/3 on the second anniversary of the date of grant.
Notwithstanding the foregoing, this Option shall become fully 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
<PAGE>
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.
(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
<PAGE>
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), 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, (y) mental or
physical disability of the Optionee as determined by a medical
doctor satisfactory to the Company or (z) termination of the
Optionee's employment, status as director, or consulting contract or
advisory services, as the case may be, with the Company or a
subsidiary for cause;
(ii) 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);
<PAGE>
(iv) the date that the Optionee ceases to be a director,
consultant to or ceases to be employed by, as the case may be,
the Company or a subsidiary as a result of a termination for
cause; and
(v) the tenth (10th) anniversary of the date of grant of
this Option.
(b) If provided in an Option, the Company in its sole discretion
may, by giving written notice (a "Cancellation Notice") cancel, effective
upon the date of the consummation of any of the transactions described in
Section 2(e), all or any portion of this Option that remains unexercised on
such date. Such Cancellation Notice shall be given a reasonable period of
time (but not less than 15 days) prior to the proposed date of such
cancellation, and may be given either before or after shareholder approval
of such transaction.
SECTION 5. ADJUSTMENT OF SHARES.
(a) If at any time while unexercised Options are outstanding
hereunder, there shall be any increase or decrease in the number of issued
and outstanding shares of Common Stock through the declaration of a stock
dividend or through any recapitalization resulting in a stock split-up,
combination or exchange of shares, then and in such event appropriate
adjustment shall be made in the number of Shares and the exercise price per
Share thereof then subject to this Option, so that the same proportion of
the Company's issued and outstanding shares shall remain subject to
purchase at the same aggregate exercise price.
(b) The Company may change the terms of this Option, with
respect to the exercise price or the number of Shares subject to this
Option, or both, when, in the Company's sole discretion, such adjustments
become appropriate by reason of any significant corporate transaction.
(c) Except as otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection
with direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other 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.
<PAGE>
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.
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
(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/ Mike McGuire
-------------------------
Mike McGuire, Optionee
Address:
6738 E. Canyon Ridge
Orange, CA 92869
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of TWO THOUSAND
SEVENTY-SEVEN (2,077) 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
GUS MENDOZA
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.69 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Gus Mendoza
--------------------------------------------
Gus Mendoza, Optionee
Address:
P.O. Box 3073
Mission Viejo, Calif
92690-3073
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR THOUSAND ONE
HUNDRED FIFTY-FOUR (4,154) 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
GUS MENDOZA
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.69 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Gus Mendoza
--------------------------------------------
Gus Mendoza, Optionee
Address:
P.O. Box 3073
Mission Viejo, Calif
92690-3073
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of TWO THOUSAND FOUR
HUNDRED THIRTY-SIX (2,436) 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
GUS MENDOZA
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Gus Mendoza
---------------------------------------
Gus Mendoza, Optionee
Address:
P.O. Box 3073
Mission Viejo, Calif
92690-3073
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR THOUSAND
FOUR HUNDRED EIGHTY-FOUR (4,484) 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
GUS MENDOZA
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $5.57 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Gus Mendoza
---------------------------------------
Gus Mendoza, Optionee
Address:
P.O. Box 3073
Mission Viejo, Calif
92690-3073
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of SEVEN HUNDRED
EIGHT (708) 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
GUS MENDOZA
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Gus Mendoza
--------------------------------------
Gus Mendoza, Optionee
Address:
P.O. Box 3073
Mission Viejo, CA
92690-3073
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of TWO HUNDRED
THIRTY-SIX (236) 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
DENISE ORCHARD
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Denise Orchard
------------------------------
Denise Orchard, Optionee
Address:
11357 Breithorn Court
Riverside, CA 92503
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Seven Hundred
Eight (708) 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
MARIE REICH
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Marie Riech
-----------------------------
Marie Riech, Optionee
Address:
460 South Paseo Bandara
Anaheim, CA 92807
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR THOUSAND ONE
HUNDRED FIFTY-FOUR (4,154) 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
MARIE REICH
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.69 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Marie Reich
------------------------------
Marie Reich, Optionee
Address:
460 Paseo Bandera
Anaheim, CA 92807
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
FORTY-FOUR (944) 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
JAMES RICH
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Rich
-------------------------------
James Rich, Optionee
Address:
802 South Bay Front
Balboa Island Calif.
92662
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND ONE
HUNDRED THIRTY-THREE (1,133) 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
JAMES RICH
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.94 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Rich
-------------------------------
James Rich, Optionee
Address:
802 South Bay Front
Balboa Island Calif.
92662
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of THREE HUNDRED
FIFTY-THREE (353) 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
JAMES RICH
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.36 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Rich
-------------------------------
James Rich, Optionee
Address:
802 South Bay Front
Balboa Island Calif.
92662
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
SEVENTY-FOUR (974) 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
JAMES RICH
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Rich
-------------------------------
James Rich, Optionee
Address:
802 South Bay Front
Balboa Island Calif.
92662
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND
EIGHT HUNDRED EIGHTY-EIGHT (1,888) 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
JAMES RICH
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ James Rich
-------------------------------
James Rich, Optionee
Address:
802 South Bay Front
Balboa Island Calif.
92662
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
FORTY-FOUR (944) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams, Optionee
-----------------------------------
Barry Williams, Optionee
Address:
1601 Dove Street
Suite 190
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR HUNDRED
SEVENTY-TWO (472) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
-----------------------------------
Barry Williams, Optionee
Address:
1601 Dove Street
Suite 190
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of FOUR HUNDRED
SEVENTY-TWO (472) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.63 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
----------------------------------
Barry Williams, Optionee
Address:
1601 Dove St.
Suite 190
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
FORTY-FOUR (944) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.69 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
-----------------------------------
Barry Williams, Optionee
Address:
1601 Dove St #190
Newport Beach, Calif 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND ONE
HUNDRED THIRTY-THREE (1,133) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.94 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
-----------------------------------
Barry Williams, Optionee
Address:
1601 Dove Street
Suite 190
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of THREE HUNDRED
FIFTY-THREE (353) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $6.36 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
-----------------------------------
Barry Williams, Optionee
Address:
1601 Dove Street
Suite 190
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of NINE HUNDRED
SEVENTY-FOUR (974) 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
BARRY WILLIAMS
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $7.42 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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
------------------------------------
Barry Williams, Optionee
Address:
1601 Dove St.
Suite 190
Newport Beach, CA 92660
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of ONE THOUSAND
EIGHT HUNDRED EIGHTY-EIGHT (1,888) 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
BARRY WILLIAMS
(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
<PAGE>
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,
<PAGE>
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);
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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/ Barry Williams
-----------------------------------
Barry Williams, Optionee
Address:
1601 Dove St #190
Newport Beach
California, 92660
714-955-1275
<PAGE>
[LETTERHEAD OF JENKENS & GILCHRIST]
January 7, 1998
FIRSTPLUS Financial Group, Inc.
1600 Viceroy, 8th Floor
Dallas, Texas 75235
Re: FIRSTPLUS Financial Group, Inc. between the Company and the signatories
thereto - Registration Statement on Form S-8
Gentlemen:
We are counsel to FIRSTPLUS Financial Group, Inc., a Nevada corporation
(the "Company"), and have acted as such in connection with the preparation of
the Registration Statement on Form S-8 (the "Registration Statement") to be
filed with the Securities and Exchange Commission on or about January 7,
1998, under the Securities Act of 1933, as amended (the "Securities Act"),
relating to 125,000 shares (the "Shares") of the $0.01 par value common stock
(the "Common Stock") of the Company that have been or may be issued by the
Company under certain Nonqualified Stock Option Agreements between the
Company and the signatories thereto (the "Agreements").
You have requested an opinion with respect to certain legal aspects of
the proposed offering. In connection therewith, we have examined and relied
upon the original, or copies identified to our satisfaction, of (1) the
Amended and Restated Articles of Incorporation, as amended, and the Amended
and Restated Bylaws of the Company, as amended; (2) minutes and records of
the corporate proceedings of the Company with respect to the establishment of
the Agreements, the issuance of the shares of Common Stock pursuant to the
Agreements and related matters; (3) the Registration Statement and exhibits
thereto, including the Agreements; and (4) such other documents and
instruments as we have deemed necessary for the expression of opinions herein
contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions
of fact material to this opinion, and as to the content and form of the
Amended and Restated Articles of Incorporation, as amended, the Amended and
Restated Bylaws, as amended, minutes, records, resolutions and other
documents or writings of the Company, we have relied, to the extent deemed
reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments
furnished to us by the Company, without independent check or verification of
their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and subject to the assumptions
noted below, we are of the opinion that the Company presently has available
at least 125,000 shares of authorized but unissued shares and/or treasury
shares of Common Stock from which may be issued the 125,000 Shares of Common
Stock issued or proposed to be issued pursuant to the exercise of options
granted or shares sold under the Agreements. Assuming that
<PAGE>
(1) the shares to be granted or sold in the future will be duly granted
in accordance with the terms of the Agreements;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons issued
shares of Common Stock under the Agreements; and
(3) the consideration for the shares of Common Stock issued pursuant to
the Agreements is actually received by the Company as provided in the
Agreements and exceeds the par value of such shares;
then the 125,000 Shares of Common Stock that may be issued in accordance with
the terms of the Agreements will be, when and if issued, duly and validly
issued, fully paid and nonassessable.
We are licensed to practice law only in The State of Texas. The opinions
expressed herein are specifically limited to the laws of the State of Texas,
the federal laws of the United States of America and Nevada general
corporation law. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to references to us included in or
made a part of the Registration Statement. In giving this consent, we do not
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
Jenkens & Gilchrist,
A Professional Corporation
By: /s/ Ronald J. Frappier
-------------------------------
Ronald J. Frappier,
Authorized Signatory
cc: Ronald M Bendalin
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 to be filed on or about January 7, 1998) pertaining to the
following stock option agreements of FIRSTPLUS Financial Group, Inc.
Stock Option Agreement for Kristin Andrade-Reitz
Stock Option Agreement for James Capretz
Stock Option Agreement for David Kagnoff
Stock Option Agreement for Javier S. Llanes
Stock Option Agreement for Michael McGuire
Stock Option Agreement for Gustavo L. Mendoza
Stock Option Agreement for Denise Orchard
Stock Option Agreement for Marie A. Reich
Stock Option Agreement for James Rich
Stock Option Agreement for Barry Williams
of our report dated October 30, 1997, respect to the consolidated financial
statements of FIRSTPLUS Financial Group, Inc. included in its Annual Report
(Form 10-K) for the year ended September 30, 1997, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
-------------------------------------
Ernst & Young LLP
Dallas, Texas
January 6, 1998
