As filed with the Securities and Exchange Commission on August 21, 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 75235
(Address of principal executive offices) (Zip Code)
-----------------------
Amended and Restated FIRSTPLUS Financial Group, Inc.
1998 Long-Term Incentive Plan
Restricted Stock Grants to Jack Roubinek
Stock Option Agreement for Veretta Anderson
Stock Option Agreement for Rich Bailey
Stock Option Agreement for William P. Benac
Stock Option Agreement for Mark Blinn
Stock Option Agreement for Ron Conner
Stock Option Agreement for Charles Coons
Stock Option Agreement for Michael Dillman
Stock Option Agreement for William G. Eisenhauer
Stock Option Agreement for Kevin Gates
Stock Option Agreement for Linda L. Glidewell
Stock Option Agreement for John Griggs
Stock Option Agreement for Brent Hansen
Stock Option Agreement for John R. Hauge
Stock Option Agreement for William Homer
Stock Option Agreement for Stephen Ingram
Stock Option Agreement for Jeff Johnson
Stock Option Agreement for William G. Joiner
Stock Option Agreement for David Jones
Stock Option Agreement for Simone Lagomarsino
Stock Option Agreement for Scott Mackay
Stock Option Agreement for Valerie Martin
Stock Option Agreement for Robert Mirto
Stock Option Agreement for Richard W. Nelson
Stock Option Agreement for James M. O'Reilly
Stock Option Agreement for Kim Phillips
Stock Option Agreement for Terrie Reedy
Stock Option Agreement for Jeanne G. Selzer
Stock Option Agreement for Valerie R. Silvey
Stock Option Agreement for Craig L. Smith
Stock Option Agreement for Jon W. Stewart
Stock Option Agreement for Douglas P. Swindall
Stock Option Agreement for Lon Tibbatts
Stock Option Agreement for Kenneth P. Weatherwax
(Full title of the plans)
-----------------------
Ronald M Bendalin, Esq.
General Counsel
FIRSTPLUS Financial Group, Inc.
1600 Viceroy, 4th Floor
Dallas, Texas 75235
(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>
<S> <C> <C> <C> <C>
========================================================================================================================
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be to be offering price aggregate offering registration
registered registered (1) per share (2)(3) price (2)(3) fee (3)
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par 2,710,500 Shares $53.06 $86,064,310 $25,389
value per share
========================================================================================================================
<FN>
<PAGE>
(1) The securities to be registered include an aggregate of 2,710,500
shares reserved for issuance, including (i) 2,000,000 shares reserved
for issuance under the Amended and Restated FIRSTPLUS Financial Group,
Inc. 1998 Long-Term Incentive Plan (the "Plan"), (ii) 40,000 shares
that have been issued or are reserved for issuance pursuant to
restricted stock grants to Jack Roubinek (the "Restricted Stock") and
(ii) 670,500 shares reserved for issuance under the individual stock
option agreements listed above (collectively, the "Option Agreements").
(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. Accordingly, the price per share of
common stock offered hereunder and aggregate offering price pursuant to
the Plan and the Option Agreements are based upon (i) 2,000,000 shares
of Common Stock reserved for issuance under the Plan, but not subject
to outstanding stock options issued under any plan or option agreement,
and 40,000 shares of the Restricted Stock that have been either issued
or reserved for issuance, at a price of $29.66, which is the average of
the highest and lowest price per share of Common Stock on the New York
Stock Exchange, Inc. on August 17, 1998, and (ii) the following shares
of Common Stock reserved for issuance under the Option Agreements at
the following exercise prices:
Number of Shares Subject to Exercise Price
Outstanding Employee Share Options Per Share ($)
---------------------------------- --------------
1,000 53.06
75,000 48.31
20,000 48.00
2,000 46.44
5,000 45.56
3,000 45.00
100,000 44.50
6,000 43.19
25,000 42.50
3,000 42.13
1,000 41.88
14,000 41.44
2,000 41.13
27,500 39.88
4,000 39.00
4,500 38.75
12,500 36.75
2,000 36.31
2,000 36.25
1,000 36.00
280,000 33.50
80,000 32.88
</FN>
</TABLE>
<PAGE>
PART I
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
- --------
*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.
Included in Part I of this Registration Statement on Form S-8 is a reoffer
prospectus concerning reoffers and resales of certain of the shares of Common
Stock registered hereby, which is filed in reliance on General Instruction C to
Form S-8.
2
<PAGE>
16,000 SHARES
FIRSTPLUS FINANCIAL GROUP, INC.
COMMON STOCK
This Prospectus relates to an aggregate of 16,000 shares (the "Shares")
of Common Stock, par value $0.01 per share (the "Common Stock"), of FIRSTPLUS
Financial Group, Inc. (the "Company"), which may be offered from time to time by
the Selling Shareholder. See "Selling Shareholder." The Company will receive no
part of the proceeds from such sales. See "Plan of Distribution." All expenses
(other than commissions and discounts of underwriters, dealers or agents)
incurred in connection with this offering are estimated to be approximately
$2,500. All of such expenses will be paid by the Company.
The Company has been advised by the Selling Shareholder that he may
sell all or a portion of the Shares offered by this Prospectus from time to time
(i) on the New York Stock Exchange, Inc. (the "NYSE") at prices prevailing at
the time of such sales or at prices reasonably related thereto, (ii) otherwise
than on the NYSE at market prices prevailing at the time of the sale or at
negotiated prices or (iii) by a combination of the foregoing methods of sale.
The Selling Shareholder and any broker, dealer or other agent executing sell
orders on behalf of the Selling Shareholder may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Act"), in
which event commissions received by any such broker, dealer or agent may be
deemed to be underwriting commissions under the Act.
The Common Stock of the Company is traded on the NYSE under the symbol
"FP." On August 17, the last reported closing price of the Common Stock on the
NYSE was $30.00 per share.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------
The date of this Prospectus is August 21, 1998.
1
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
periodic reports, proxy statements, and other information can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
regional offices of the Commission: New York Regional Office, 7 World Trade
Center, Thirteenth Floor, New York, NY 10048; and Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL
60661. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Reports, proxy information statements and other
information regarding registrants that file electronically with the Commission
can be obtained at the following Web site maintained by the Commission:
http://www.sec.gov.
The Company's Common Stock is traded on the NYSE under the symbol "FP."
Reports and other information concerning the Company can be obtained by
contacting the New York Stock Exchange, Inc., at the following address: 20 Broad
Street, New York, NY 10005, telephone number (212) 656-3000.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K filed with the Commission
for the fiscal year ended September 30, 1997.
(2) The Company's Quarterly Report on Form 10-QT/A filed with the
Commission for the transition period ended December 31, 1997.
(3) The Company's Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended March 31, 1998 and June 30, 1998.
(4) The Company's Current Reports on Form 8-K and Form 8-K/A filed with
the Commission on May 29, 1998, May 5, 1998, March 12, 1998, February 5, 1998,
December 23, 1997, December 22, 1997 and December 19, 1996.
(5) The description of the Common Stock of the Company set forth in the
Registration Statement on Form 8-A, dated January 5, 1998, 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.
Any statement contained in a document incorporated by reference shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained hereby or in any other subsequently filed
document or in an accompanying prospectus supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person to whom
this Prospectus is delivered, upon written or oral request of such person, a
copy of all documents incorporated herein by reference, other than exhibits. All
requests for copies of such documents should be directed to: Ronald M Bendalin,
FIRSTPLUS Financial Group, Inc., 1600 Viceroy, 4th Floor Dallas, Texas 75235,
telephone number (214) 599-6400.
2
<PAGE>
THE COMPANY
FIRSTPLUS Financial Group, Inc. is a specialized consumer finance
company that originates, purchases, services and sells consumer finance
receivables. The Company's primary loan product is a line of debt consolidation
or home improvement loans secured by second liens on residential real property,
with loan-to-value ratios typically exceeding 100% ("High LTV Loans"). The
Company also originates, purchases and sells a variety of other loans, including
non-conforming home equity loans ("Home Equity Loans"), conforming first lien
loans and personal consumer loans. The Company sells substantially all of its
High LTV Loans through its securitization program and retains rights to service
these loans.
The Company relies principally on the creditworthiness of the borrower
for repayment of High LTV Loans. The Company's borrowers typically have limited
access to consumer financing for a variety of reasons, primarily insufficient
home equity values. The Company uses its own credit evaluation criteria to
classify its applicants as "A+" through "D." The Company currently makes loans
only to borrowers it classifies as "C+" or better. The Company's credit
evaluation criteria include, as a significant component, a credit evaluation
scoring methodology developed by Fair, Isaac and Company, a consulting firm
specializing in creating default-predictive models through scoring mechanisms
("FICO").
The Company's principal origination channel is its network of regional
independent correspondent lenders ("Correspondents"). Correspondents are
typically commercial banks, thrifts or finance companies that do not have the
infrastructure to hold and service portfolios of High LTV Loans. The Company's
Correspondents originate loans ("Correspondent Loans") using the Company's
underwriting criteria and sell these loans to the Company.
The Company continues to expand its origination channels through the
use of telemarketing, direct mail, national advertising and a nationwide retail
branch operation to originate loans directly to qualified borrowers ("Direct to
Consumer Loans"). The Company is pursuing this strategy to continue to increase
its Direct to Consumer Loan originations because the Company believes that this
origination channel should prove to be more profitable and allow the Company to
have better control over the quality of the Company's production. To achieve
this goal, the Company is building national recognition of the FIRSTPLUS brand
name through increased national advertising, the use of celebrity spokespersons,
such as Dan Marino, a professional football player with the Miami Dolphins, and
the sponsorship of other sports-related entities, such as the FIRSTPLUS NASCAR
Racing Team. The Company employs innovative direct mail marketing techniques and
currently mails approximately 500,000 pieces of mail per day. The Company
processes Direct to Consumer originations through its telemarketing centers,
retail branches and centralized processing centers.
The Company sells substantially all of the High LTV Loans it originates
and purchases through its securitization program and generally retains rights to
service such loans. The Company earns servicing fees on a monthly basis
primarily at a rate of 0.75% of the unpaid balance for loans it services.
The Company is a Nevada corporation that was formed in October 1994.
The Company's principal offices are located at 1600 Viceroy, Dallas, Texas
75235, and its telephone number is (214) 599-6400.
3
<PAGE>
SELLING SHAREHOLDER
This Prospectus covers resales of shares of restricted Common Stock
that have been granted to Jack Roubinek (the "Selling Shareholder") and
currently are vested. The following table sets forth, as of August 15, 1998,
certain information regarding the beneficial ownership of the Common Stock of
the Company as held by Jack Roubinek:
<TABLE>
<CAPTION>
Common Stock Beneficially Shares of Common Stock
Owned Common Stock Beneficially Owned
Name Prior to Offering (1) Offered After Offering (4)
---- --------------------- ------- ------------------
Number (2) Percent (3) Number (2) Percent (3)
------ ----------- ------ -----------
<S> <C> <C> <C> <C> <C>
Jack Roubinek 60,333 * 16,000 44,333 *
Division President - Wholesale
Lending since 4/97; Senior Vice
President - Title I Direct
Lending 1/95 - 4/97
- ------------------
<FN>
* Less than 1%
(1) The person named in the table has sole voting and investment power with
respect to all shares of Common Stock beneficially owned, subject to
community property laws, if applicable.
(2) Includes options that are currently exercisable, or become exercisable
within 60 days, to purchase 43,333 shares.
(3) As of July 31, 1998, there were 37,884,831 shares of Common Stock
issued and outstanding.
(4) Assumes that all of the shares of Common Stock offered hereby are
actually sold.
</FN>
</TABLE>
4
<PAGE>
PLAN OF DISTRIBUTION
This Prospectus covers the sale by the Selling Shareholder of the
Shares. The Shares were acquired by the Selling Shareholder pursuant to
restricted stock grants. See "Selling Shareholder." The Company has been advised
by the Selling Shareholder that he may sell all or a portion of the Shares
offered by this Prospectus from time to time (i) on the NYSE at prices
prevailing at the time of such sales or at prices reasonably related thereto,
(ii) otherwise than on the NYSE at market prices prevailing at the time of the
sale or at negotiated prices, or (iii) by a combination of the foregoing methods
of sale. The Selling Shareholder and any broker, dealer or other agent executing
sell orders on behalf of the Selling Shareholder may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act"), in which event commissions received by any such broker, dealer or agent
may be deemed to be underwriting commissions under the Act. Such commissions
received by a broker, dealer or agent may be in excess of customary
compensation.
The Company will pay all of the costs, expenses and fees incident to
the offering and sale of the Shares to the public, other than commissions and
discounts of underwriters, brokers, dealers or agents not paid by the purchasers
of the Shares.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Jenkens & Gilchrist, a Professional Corporation, 1445 Ross
Avenue, Suite 3200, Dallas, Texas 75202-2711.
EXPERTS
The consolidated financial statements of FIRSTPLUS Financial Group, Inc.
appearing in FIRSTPLUS Financial Group's Annual Report (Form 10-K) for the year
ended September 30, 1997, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
by reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission,
Washington, D.C., a Registration Statement on Form S-8 under the Act with
respect to the Shares offered hereby. This Prospectus does not contain all the
information included in such Registration Statement, certain portions of which
are omitted as permitted by the rules and regulations of the Commission. The
Registration Statement, including the exhibits and schedules filed herewith, may
be inspected at the principal offices of the Commission in Washington, D.C.,
without charge, and copies of the material contained herein may be obtained from
the Commission upon payment of the applicable copying charges. For further
information with respect to the Company and the Shares offered hereby, reference
is made to the Registration Statement and such exhibits and schedules.
5
<PAGE>
- --------------------------------------------------------------------------------
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and if given or
made, such information must not be relied upon as having been authorized by the
Company or the Selling Shareholder. This Prospectus does not constitute an offer
to sell, or a solicitation of an offer to purchase, any securities other than
the Shares offered hereby, or in any state or jurisdiction in which such offer
or solicitation would be unlawful. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create an implication
that the information herein is correct as of any time subsequent to the date
hereof.
------------------------------------------
TABLE OF CONTENTS
------------------------------------------
Page
----
Available Information.........................................................2
Incorporation of Certain Documents by
Reference..................................................................2
The Company...................................................................3
Selling Shareholder...........................................................4
Plan of Distribution..........................................................5
Legal Matters.................................................................5
Experts.......................................................................5
Additional Information........................................................5
------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
16,000 Shares
FIRSTPLUS FINANCIAL GROUP, INC.
COMMON STOCK
------------------------------------------
PROSPECTUS
------------------------------------------
August 21, 1998
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) The Company's Annual Report on Form 10-K filed with the Commission
for the fiscal year ended September 30, 1997.
(2) The Company's Quarterly Report on Form 10-QT/A filed with the
Commission for the transition period ended December 31, 1997.
(3) The Company's Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended March 31, 1998 and June 30, 1998.
(4) The Company's Current Reports on Form 8-K and Form 8-K/A filed with
the Commission on May 29, 1998, May 5, 1998, March 12, 1998, February 5, 1998,
December 23, 1997, December 22, 1997 and December 19, 1996.
(5) The description of the Common Stock of the Company set forth in the
Registration Statement on Form 8-A, dated January 5, 1998, 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 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.
Exhibit Description of Exhibit
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)
<PAGE>
4.4** Stock Option Agreement for Rich Bailey
4.5** Stock Option Agreement for William P. Benac
4.6 Stock Option Agreement for William G. Joiner
4.7 Terms of Restricted Stock Grants to Jack Roubinek
4.8 Amended and Restated FIRSTPLUS Financial Group, Inc.
1998 Long Term Incentive Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in their opinion filed as Exhibit
5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this
registration statement)
- ----------------
* Filed as the exhibit shown in parenthesis contained in the Company's
Registration Statement on Form S-1 (No. 33-96688) effective February 1,
1996, incorporated herein by reference.
** Substantially identical stock option agreements have been omitted pursuant
to Instruction 2 to Item 601 of Regulation S-K (see attached schedule).
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
(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.
<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 August 21, 1998:
FIRSTPLUS FINANCIAL GROUP, INC.
By: /s/ Daniel T. Phillips
-------------------------
Daniel T. Phillips
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Daniel T. Phillips, 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
- --------- -------- ----
/s/ Daniel T. Phillips Chairman of the Board August 21, 1998
- --------------------------- and Chief Executive Officer
Daniel T. Phillips (Principal Executive Officer)
/s/ Eric C. Green President and Director August 21, 1998
- ---------------------------
Eric C. Green
/s/ William Benac Chief Financial Officer August 21, 1998
- --------------------------- (Principal Financial and
William Benac Accounting Officer)
/s/ John Fitzgerald Director August 21, 1998
- ---------------------------
John Fitzgerald
/s/ Dan Jessee Director August 21, 1998
- ---------------------------
Dan Jessee
/s/ Paul Nussbaum Director August 21, 1998
- ---------------------------
Paul Nussbaum
/s/Paul Seegers Director August 21, 1998
- ---------------------------
Paul Seegers
/s/ Sheldon I. Stein Director August 21, 1998
- ---------------------------
Sheldon I. Stein
/s/ J. Danforth Quayle Director August 21, 1998
- ---------------------------
J. Danforth Quayle
/s/ James R. Adams Director August 21, 1998
- ---------------------------
James R. Adams
<PAGE>
INDEX TO EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
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 Rich Bailey
4.5** Stock Option Agreement for William P. Benac
4.6 Stock Option Agreement for William G. Joiner
4.7 Terms of Restricted Stock Grants to Jack Roubinek
4.8 Amended and Restated FIRSTPLUS Financial Group, Inc.
1998 Long Term Incentive Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in their opinion filed as
Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this
registration statement)
- ----------------
* Filed as the exhibit shown in parenthesis contained in the Company's
Registration Statement on Form S-1 (No. 33-96688) effective February 1,
1996, incorporated herein by reference.
** Substantially identical stock option agreements have been omitted pursuant
to Instruction 2 to Item 601 of Regulation S-K (see attached schedule).
Exhibit 4.4
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Four Thousand
(4,000) 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 Rich Bailey (the "Optionee") pursuant to the terms of this Option
Agreement (the "Option Agreement").
Section 1. Exercise Price. The exercise price is $44.50 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 vested and
exercisable upon the occurrence of certain significant corporate events
described in Section 2(e) below.
(a) Method of Exercise. Options shall be deemed exercised when:
(i) the Company has received written notice of such
exercise, including the number of Shares that are being
exercised, delivered to the Company in accordance with the notice
provisions herein signed by the person or persons entitled to
exercise this Option and, if this Option is being exercised by
any person or persons other than the Optionee, be accompanied by
proof, satisfactory to the Company, of the right of such person
or persons to exercise this Option;
(ii) full payment of the aggregate exercise price of the
Shares as to which this Option is exercised has been tendered to
the Company; and
(iii) arrangements that are satisfactory to the Company in
its sole discretion have been made for the Optionee's payment to
the Company of the amount, if any, that the Company determines to
be necessary for the Company to withhold in accordance with
applicable federal or state income tax withholding requirements.
(b) Payment. The exercise price of any Shares purchased shall be
paid solely in cash, by certified or cashier's check, by money order,
by personal check (if approved by the Company), or in Common Stock
owned by the Optionee (if the Optionee owned such Common Stock for six
months prior to using such stock to exercise the Option) (or by a
combination of the above). If the exercise price is paid in whole or
in part with Shares of Common Stock of the Company, such Common Stock
shall be valued at its Fair Market Value on the date of exercise. Any
Common Stock delivered in satisfaction of all or a portion of the
exercise price shall be appropriately endorsed for transfer and
assignment to the Company. For purposes hereof, "Fair Market Value" of
each 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 for trading on any United States national
<PAGE>
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) It is the intention of the Company to register the
Shares issuable upon the exercise of this Option pursuant to a
registration statement on Form S-8, prior to the exercise
thereof, or if Form S-8 is unavailable, then on Form S-3;
however, in the event that Shares are issued upon the exercise of
this Option without registration of such Shares under the
Securities Act of 1933, as amended (the "Act"), such Shares 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 with respect to
all of the Shares covered hereby 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 and the 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 such event; (iii) is a sale, lease, exchange or other
disposition of all or substantially all the property and assets of the
Company to an unaffiliated entity.
<PAGE>
(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. 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 unvested 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 (provided that the vested but
unexercised portion shall remain exercisable for the term of this
Option as provided herein):
(i) thirty (30) days after the date that the Optionee ceases
to be employed by the Company or an affiliate of the Company by
reason of (x) the Optionee's voluntary termination of employment
or (y) termination of the Optionee's employment with the Company
or an affiliate of the Company for theft proven by the Company;
and
(ii) the tenth (10th) anniversary of the date of grant of
this Option.
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.
<PAGE>
(b) 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.
(c) 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 be transferred or
assigned by the Optionee.
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. 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 9. 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.
<PAGE>
Section 10. 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 11. 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 reasonable
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 reasonable 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.
<PAGE>
(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) Any person entitled to notice under this Option may waive
such notice.
(j) 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.
(k) 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.
(l) 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.
(m) Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of this Option dictates, the
plural shall be read as the singular and the singular as the plural.
Date of Grant: FIRSTPLUS FINANCIAL GROUP, INC.
August 29, 1997
By: /s/ Daniel T. Phillips
-------------------------
Address: Name: Daniel T. Phillips
Title: President
1600 Viceroy Dr.
Dallas, Texas 75235
<PAGE>
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/ Rich Bailey
-------------------------
Name, Optionee
Address:
4021 Morning Star Drive
Salt Lake City, Utah 84124
<PAGE>
SCHEDULE A TO EXHIBIT 4.4
Substantially Identical Stock Option Agreements That Have Been Omitted
Pursuant to Instruction 2 to Item 601 of Regulation S-K
=================================================
Name Options
Granted*
=================================================
Kevin Gates 49,467
Brent Hansen 15,954
Jeff Johnson 15,954
Scott Mackay 10,625
Terrie Reedy 4,000
=================================================
*All of the above options were granted on August 29, 1997 at an exercise price
of $44.50.
Exhibit 4.5
STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Seventy-five
Thousand (75,000) shares (the "Shares") of common stock, par value $.01 per
share (the "Common Stock"), of FIRSTPLUS Financial Group, Inc. (the "Company"),
is hereby granted to William P. Benac (the "Optionee") pursuant to the terms of
this Option Agreement (the "Option Agreement").
Section 1. Exercise Price. The exercise price is $48.3125 for each
Share.
Section 2. Exercise of the Option. This Option may be exercised at any
time during the term of this Option, in whole or in part with respect to Shares
that have vested. Shares subject to this Option shall vest in equal one-third
shares on the first, second and third anniversaries of the date of grant. The
committee may in its sole discretion accelerate the date on which any Option may
be exercised. Notwithstanding the foregoing, this Option shall become fully
exercisable upon the occurrence of certain significant corporate events
described in Section 2(e) below.
(a) Method of Exercise. Options shall be deemed properly
exercised when:
(i) the Company has received written notice of such
exercise, stating the number of Shares which are being purchased,
delivered to the Company and signed by the person or persons
entitled to exercise the Option and, if the Option is being
exercised by any person or persons other than the Optionee, be
accompanied by proof, satisfactory to the Company, of the right
of such person or persons to exercise the Option;
(ii) full payment of the exercise price of the Shares as to
which the Option is exercised has been tendered to the Company;
and
(iii) arrangements that are satisfactory to the Committee in
its sole discretion have been made for the Optionee's payment to
the Company of the amount, if any, that the Company determines to
be necessary for the company to withhold in accordance with
applicable federal or state income tax withholding requirements.
(b) Payment. The exercise price of any shares purchased shall be
paid in cash, by certified or cashier's check, by money order, by
personal check (if approved by the Committee), or in Common Stock
owned by such Optionee (if Optionee owned such Common Stock for six
months prior to using such stock to exercise the Option) or by a
combination of the above. If the exercise price is paid in whole or in
part with shares of Common Stock of the Company, such Common Stock
shall be valued at its Fair Market Value on the date of exercise. Any
Common Stock delivered in satisfaction of all or a portion of the
exercise price shall be duly endorsed for transfer and assignment to
the Company.
(c) Restrictions on Exercise.
(i) This Option may not be exercised if the issuance of
the Shares upon such exercise would constitute a violation
of any applicable federal or state securities or other law
or valid regulation. As a condition to the exercise of this
Option, the Company may require the exercising person to
make any agreements and undertakings that may be required by
any applicable law or regulation.
1
<PAGE>
(ii) Shares issued upon the exercise of this Option
without registration of such Shares under the Securities Act
of 1933, as amended (the "Act"), shall be restricted
securities subject to the terms of Rule 144 under the Act.
The certificates representing any such Shares shall bear an
appropriate legend restricting transfer and the transfer
agent of the Company shall be given stop transfer
instructions with respect to such Shares.
(iii) This Option may not be exercised if, in the good
faith judgment of the Board of Directors of the Company or
the Board's designee, the issuance of the Shares upon such
exercise or the sale thereof would violate the Company's
written policy regarding sales or purchases of the Company's
Common Stock then in effect or if the Company proposes to
file a registration statement with respect to selling
additional shares of the Company's Common Stock and the
underwriters reasonably believe that the issuance of the
Shares upon such exercise or the sale thereof will
jeopardize the success of the offering.
(d) Surrender of Option. If this Option is exercised in part by
the Company, the Optionee shall, if requested, deliver this Option
Agreement and any other written agreements with respect to this Option
to the Company to be endorsed with a notation of such exercise and
returned to the Optionee.
(e) Certain Corporate Events. On the date thirty (30) days prior
to any occurrence described in this Section (2)(e)(i), (ii) or (iii),
but only where such anticipated occurrence actually takes place,
notwithstanding the exercise schedule in this Option Agreement, this
Option shall immediately become exercisable in full where there (i) is
any transaction (which shall include a series of transactions
occurring within 60 days or occurring pursuant to a plan) that has the
result that shareholders of the Company immediately before such
transaction cease to own at least 51% of (x) the voting stock of the
Company or (y) any entity that results from the participation of the
Company in a reorganization, consolidation, merger, liquidation or any
other form of corporate transaction; (ii) is a merger, consolidation,
reorganization, liquidation or dissolution in which the Company does
not survive; (iii) is a sale, lease, exchange or other disposition of
all or substantially all the property and assets of the Company.
Section 3. Term of Option. This Option may not be exercised after the
expiration of ten (10) years from the Date of Grant and is subject to earlier
termination as provided in Section 4. In addition, this Option is subject to
cancellation by the Company upon a significant corporate event as provided in
Section 4 below. This Option may be exercised during such times only in
accordance with the terms of this Option Agreement.
Section 4. Termination of Option Period.
(a) The unexercised portion of this Option shall automatically
and without notice terminate and become null and void at the time of
the earliest to occur of the following:
(i) thirty (30) days after the date that the Optionee
ceases to be employed by the Company or a subsidiary of the
Company or ceases to be a director, consultant or advisor to
the Company or a subsidiary of the Company, as the case may
be, regardless of the reason therefor other than as a result
2
<PAGE>
of such termination by reason of (x) death, (y) mental or
physical disability of the Optionee as determined by a
medical doctor satisfactory to the Company or (z)
termination of the Optionee's employment, status as
director, or consulting contract or advisory services, as
the case may be, with the Company or a subsidiary for cause;
(ii) one (1) year after the date on which the Optionee
suffers a mental or physical disability as determined by a
medical doctor satisfactory to the Company;
(iii) either (y) one (1) year after the date that the
Optionee ceases to be a director, consultant to or ceases to
be employed by, as the case may be, the Company or a
Subsidiary, by reason of death of the Optionee, or (z) six
(6) months after the date on which the Optionee shall die,
if the Optionee's death shall occur during the thirty (30)
day period described in Section 4(a)(i) or the one-year
period described in Section 4(a)(ii);
(iv) the date that the Optionee ceases to be a
director, consultant to or ceases to be employed by, as the
case may be, the Company or a subsidiary as a result of a
termination for cause; and
(v) the tenth (10th) anniversary of the date of grant
of this Option.
(b) If provided in an Option, the Company in its sole discretion
may, by giving written notice (a "Cancellation Notice") cancel,
effective upon the date of the consummation of any of the transactions
described in Section 2(e), all or any portion of this Option that
remains unexercised on such date. Such Cancellation Notice shall be
given a reasonable period of time (but not less than 15 days) prior to
the proposed date of such cancellation, and may be given either before
or after shareholder approval of such transaction.
Section 5. Adjustment of Shares.
(a) If at any time while unexercised Options are outstanding
hereunder, there shall be any increase or decrease in the number of
issued and outstanding shares of Common Stock through the declaration
of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of shares, then and in such
event appropriate adjustment shall be made in the number of Shares and
the exercise price per Share thereof then subject to this Option, so
that the same proportion of the Company's issued and outstanding
shares shall remain subject to purchase at the same aggregate exercise
price.
(b) The Company may change the terms of this Option, with respect
to the exercise price or the number of Shares subject to this Option,
or both, when, in the Company's sole discretion, such adjustments
become appropriate by reason of any significant corporate transaction.
(c) Except as otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class,
either in connection with direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
3
<PAGE>
securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to the number of or exercise price of Shares then
subject to this Option.
(d) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right or
power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the
Shares subject to this Option; (iv) the dissolution or liquidation of
the Company; (v) any sale, transfer or assignment of all or any part
of the assets or business of the Company; or (vi) any other corporate
act or proceeding, whether of a similar character or otherwise.
Section 6. Non-Assignability of Option. This Option may not be
transferred or assigned by the Optionee other than by will or by the laws of
descent and distribution.
Section 7. Issuance of Shares. No person shall be, or have any rights
or privileges of, a shareholder of the Company with respect to any of the Shares
subject to this Option unless and until certificates representing such Shares
have been issued and delivered to such person. As a condition of an issuance of
a stock certificate for Shares, the Company may obtain such agreements or
undertakings, if any, as it may deem necessary or advisable to assure compliance
with any provision of this Option Agreement or any law or regulation, including,
but not limited to, the following:
(a) The Optionee's representation and warranty to the Company, at
the time the Option is exercised, that the Shares to be issued are
being acquired for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(b) the Optionee's representation, warranty or agreement to be
bound by any legends that are, in the opinion of the Company,
necessary or appropriate to comply with the provisions of any
securities law deemed by the Company to be applicable to the issuance
of the Shares and to be endorsed upon the certificates representing
the Shares.
Section 8. Administration of this Option.
(a) The determinations and the interpretation and construction of
any provision of this Option by the Company shall be final and
conclusive.
(b) Subject to the express provisions of this Option, the Company
shall have the authority, in its sole and absolute discretion (i) to
adopt, amend, and rescind administrative and interpretive rules and
regulations relating to this Option; (ii) to construe the terms of
this Option; (iii) as provided in Section 5, upon certain events to
make appropriate adjustments to the exercise price and number of
Shares subject to this Option; and (iv) to make all other
determinations and perform all other acts necessary or advisable for
administering this Option, including the delegation of such
ministerial acts and responsibilities as the Company deems
appropriate. The Company may correct any defect or supply any omission
or reconcile any inconsistency in this Option in the manner and to the
extent it shall deem expedient to carry it into effect, and it shall
be the sole and final judge of such expediency. The Company shall have
4
<PAGE>
full discretion to make all determinations on the matters referred to
in this Section 8(b), and such determinations shall be final, binding
and conclusive.
Section 9. Government Regulations. The granting and exercise of this
Option and the obligation of the Company to sell and deliver Shares under this
Option, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
Section 10. Law Governing. THIS OPTION IS INTENDED TO BE PERFORMED IN
THE STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE.
Section 11. Notices. All notices and other communications that are
required to be or may be given under this Option Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person,
transmitted by confirmed telecopy, upon receipt after dispatch by courier or by
certified or registered mail, postage prepaid, to the party to whom the notice
is given. Notices shall be given at the address under the signature of the
appropriate party to this Option Agreement or to such other address as such
party may designate by giving written notice to the other party to this Option
Agreement.
Section 12. Miscellaneous.
(a) The grant of this Option is in addition to any other
compensation that may be paid to the Optionee or other stock option
plans of the Company or other benefits with respect to the Optionee's
position with or relationship to the Company or its subsidiaries. This
Option shall not confer upon the Optionee the right to continue as an
employee, consultant or advisor, or interfere in any way with the
rights of the Company to terminate the Optionee's status as an
employee, consultant or advisor.
(b) The members of the Board of Directors of the Company shall
not be liable for any act, omission or determination taken or made in
good faith with respect to this Option, and members of the Board
shall, in addition to all other rights of indemnification and
reimbursement, be entitled to indemnification and reimbursement by the
Company in respect of any claim, loss, damage, liability or expense
(including attorneys' fees, the costs of settling any suit, provided
such settlement is approved by independent legal counsel selected by
the Company, and amounts paid in satisfaction of a judgment, except a
judgment based on a finding of bad faith) arising from such claim,
loss, damage, liability or expense to the full extent permitted by law
and under any directors' and officers' liability or similar insurance
coverage that may from time to time be in effect.
(c) Any issuance or transfer of Shares to the Optionee, or to the
Optionee's legal representative, heir, legatee, or distributee, in
accordance with the provisions of this Option, shall, to the extent
thereof, be in full satisfaction of all claims of such persons under
this Option. The Company may require the Optionee, or any legal
representative, heir, legatee or distributee as a condition precedent
to such payment or issuance or transfer of Shares, to execute a
release and receipt for such payment or issuance or transfer of Shares
in such form as it shall determine.
(d) Neither the Board nor the Company guarantees Shares from loss
or depreciation.
5
<PAGE>
(e) All expenses incident to the administration, termination, or
protection of this Option, including, but not limited to, legal and
accounting fees, shall be paid by the Company; provided, however, the
Company may recover any and all damages, fees, expenses and costs
arising out of any actions taken by the Company to enforce its rights
under this Option.
(f) Records of the Company shall be conclusive for all purposes
under this Option, unless determined by the Board to be incorrect.
(g) Any action required of the Company relating to this Option
shall be by resolution of the Board or by a person authorized to act
by resolution of the Board.
(h) If any provision of this Option is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions of this Option, but such provision shall be
fully severable, and this Option shall be construed and enforced as if
the illegal or invalid provision had never been included in this
Option.
(i) Whenever any notice is required or permitted under this
Option, such notice must be in writing and personally delivered or
sent by mail or delivery by a nationally recognized courier service.
Any notice required or permitted to be delivered under this Option
shall be deemed to be delivered on the date on which it is personally
delivered, or, if mailed, whether actually received or not, on the
third Business Day after it is deposited in the United States mail,
certified or registered, postage prepaid, addressed to the person who
is to receive it at the address that such person has previously
specified by written notice delivered in accordance with this
subsection or, if by courier, seventy-two (72) hours after it is sent,
addressed as described in this subsection. The Company or the Optionee
may change, at any time and from time to time, by written notice to
the other, the address that was previously specified for receiving
notices. Until changed in accordance with this Option, the Company and
the Optionee shall specify as its or his address for receiving notices
the address set forth in this Option pertaining to the Shares to which
such notice relates.
(j) Any person entitled to notice under this Option may waive
such notice.
(k) This Option shall be binding upon the Optionee, his legal
representatives, heirs, legatees and distributees upon the Company,
its successors, and assigns, and upon the Board and its successors.
(l) The titles and headings of Sections are included for
convenience of reference only and are not to be considered in
construction of this Option's provisions.
(m) All questions arising with respect to the provisions of this
Option shall be determined by application of the laws of the State of
Texas, except to the extent Texas law is preempted by federal law or
Nevada corporate law that is controlling. The obligation of the
Company to sell and deliver the Shares under this Option is subject to
applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or
delivery of such Shares.
6
<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.
October 27, 1997
By: /s/ Daniel T. Phillips
------------------------------------
Daniel T. Phillips
Chairman and Chief Executive Officer
Address:
1600 Viceroy Dr.
Dallas, Texas 75235
7
<PAGE>
Optionee hereby accepts this Option subject to all the terms and
provisions of this Option Agreement.
By: /s/ William P. Benac
---------------------
Name William P. Benac
Optionee
------------------------------
(Social Security No.)
Address:
1600 Viceroy Drive
Dallas, TX 75235
8
<PAGE>
SCHEDULE A TO EXHIBIT 4.5
Substantially Identical Stock Option Agreements That Have Been Omitted
Pursuant to Instruction 2 to Item 601 of Regulation S-K
<TABLE>
<CAPTION>
<S> <C> <C> <C>
======================================================================================================
Name Grant Date Exercise Options Granted
Price
======================================================================================================
Veretta Anderson 08/03/98 $39.00 1,000
- ------------------------------------------------------------------------------------------------------
Mark Blinn 03/16/98 $41.4375 12,000
- ------------------------------------------------------------------------------------------------------
Ron Conner 07/14/97 $36.25 2,000
- ------------------------------------------------------------------------------------------------------
Charles Coons 06/01/98 $39.875 10,000
- ------------------------------------------------------------------------------------------------------
Michael Dillman 08/03/98 $39.00 1,000
- ------------------------------------------------------------------------------------------------------
William G. Eisenhauer 07/06/98 $36.3125 2,000
- ------------------------------------------------------------------------------------------------------
Linda L. Glidewell 07/01/98 $36.00 1,000
- ------------------------------------------------------------------------------------------------------
John Griggs 02/16/98 $36.75 12,500
- ------------------------------------------------------------------------------------------------------
John R. Hauge 04/13/98 $48.00 20,000
- ------------------------------------------------------------------------------------------------------
William Homer 05/11/98 $46.4375 2,000
- ------------------------------------------------------------------------------------------------------
Stephen Ingram 02/06/98 $32.875 80,000
- ------------------------------------------------------------------------------------------------------
David Jones 06/01/98 $39.875 12,500
- ------------------------------------------------------------------------------------------------------
Simone Lagomarsino 04/01/98 $42.125 3,000
- ------------------------------------------------------------------------------------------------------
Valerie Martin 06/01/98 $39.875 5,000
- ------------------------------------------------------------------------------------------------------
Robert Mirto 04/20/98 $53.0625 1,000
- ------------------------------------------------------------------------------------------------------
Richard W. Nelson 04/08/98 $45.5625 5,000
- ------------------------------------------------------------------------------------------------------
James M. O'Reilly 07/27/98 $43.1875 6,000
- ------------------------------------------------------------------------------------------------------
Kim Phillips 06/15/98 $38.75 2,000
- ------------------------------------------------------------------------------------------------------
Jeanne G. Selzer 03/23/98 $41.125 2,000
- ------------------------------------------------------------------------------------------------------
Valerie R. Silvey 03/30/98 $42.50 25,000
- ------------------------------------------------------------------------------------------------------
Craig L. Smith 06/15/98 $38.75 2,500
- ------------------------------------------------------------------------------------------------------
Jon W. Stewart 03/16/98 $41.4375 2,000
- ------------------------------------------------------------------------------------------------------
Douglas P. Swindall 08/03/98 $39.00 2,000
- ------------------------------------------------------------------------------------------------------
Lon Tibbatts 05/21/98 $41.875 1,000
- ------------------------------------------------------------------------------------------------------
Kenneth P. Weatherwax 05/18/98 $45.00 3,000
======================================================================================================
</TABLE>
Exhibit 4.6
STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Two Hundred
Eighty Thousand (280,000) shares (the "Shares") of common stock, par value $.01
per share (the "Common Stock"), of FIRSTPLUS Financial Group, Inc. (the
"Company"), is hereby granted to William G. Joiner (the "Optionee") pursuant to
the terms of this Option Agreement (the "Option Agreement"). This Option
Agreement supercedes the Option Agreement, dated February 28, 1997, between the
optionee and the Company under the Company's 1995 Employee Stock Option Plan.
Section 1. Exercise Price. The exercise price is $33.50 for each Share.
Section 2. Exercise of the Option. This Option may be exercised at any
time during the term of this Option, in whole or in part with respect to Shares
that have vested. Shares subject to this Option shall vest in equal one-third
shares on the first, second and third anniversaries of the date hereof. The
Company may in its sole discretion accelerate the date on which any Option may
be exercised. Notwithstanding the foregoing, this Option shall become fully
exercisable upon the occurrence of certain significant corporate events
described in Section 2(e) below.
(a) Method of Exercise. Options shall be deemed properly
exercised when:
(i) the Company has received written notice of such
exercise, stating the number of Shares that are being
purchased, delivered to the Company and signed by the person
or persons entitled to exercise the Option and, if the
Option is being exercised by any person or persons other
than the Optionee, be accompanied by proof, satisfactory to
the Company, of the right of such person or persons to
exercise the Option;
(ii) full payment of the exercise price of the Shares
as to which the Option is exercised has been tendered to the
Company; and
(iii) arrangements that are satisfactory to the Company
in its sole discretion have been made for the Optionee's
payment to the Company of the amount, if any, that the
Company determines to be necessary for the company to
withhold in accordance with applicable federal or state
income tax withholding requirements.
(b) Payment. The exercise price of any shares purchased
shall be paid in cash, by certified or cashier's check, by money
order, by personal check (if approved by the Company), or in
Common Stock owned by such Optionee (if Optionee owned such
Common Stock for six months prior to using such stock to exercise
the Option) or by a combination of the above. If the exercise
price is paid in whole or in part with shares of Common Stock of
the Company, such Common Stock shall be valued at its Fair Market
Value on the date of exercise. Any Common Stock delivered in
satisfaction of all or a portion of the exercise price shall be
duly endorsed for transfer and assignment to the Company.
1
<PAGE>
(c) Restrictions on Exercise.
(i) This Option may not be exercised if the issuance of
the Shares upon such exercise would constitute a violation
of any applicable federal or state securities or other law
or valid regulation. As a condition to the exercise of this
Option, the Company may require the exercising person to
make any agreements and undertakings that may be required by
any applicable law or regulation.
(ii) As soon as practicable after execution of this
Option by both parties, the Company will use its best
efforts to file a registration statement on Form S-8 under
the Securities Act of 1933, as amended (the "Act") and use
its best efforts to cause the registration statement to go
effective prior to the earliest time at which the Shares may
be issued upon exercise of this Option. Any Shares issued
upon the exercise of this Option without registration of
such Shares under the Act, shall be restricted securities
subject to the terms of Rule 144 under the Act. The
certificates representing any such unregistered Shares shall
bear an appropriate legend restricting transfer and the
transfer agent of the Company shall be given stop transfer
instructions with respect to such Shares.
(iii) This Option may not be exercised if, in the good
faith judgment of the Board of Directors of the Company or
the Board's designee, the issuance of the Shares upon such
exercise or the sale thereof would violate the Company's
written policy regarding sales or purchases of the Company's
Common Stock then in effect or if the Company proposes to
file a registration statement with respect to selling
additional shares of the Company's Common Stock and the
underwriters reasonably believe that the issuance of the
Shares upon such exercise or the sale thereof will
jeopardize the success of the offering.
(d) Surrender of Option. If this Option is exercised in part
by the Optionee, the Optionee shall, if requested, deliver this
Option Agreement and any other written agreements with respect to
this Option to the Company to be endorsed with a notation of such
exercise and returned to the Optionee.
(e) Certain Corporate Events. On the date thirty (30) days
prior to any occurrence described in this Section (2)(e)(i), (ii)
or (iii), but only where such anticipated occurrence actually
takes place, notwithstanding the exercise schedule in this Option
Agreement, this Option shall immediately become exercisable in
full where there (i) is any transaction (which shall include a
series of transactions occurring within sixty (60) days or
occurring pursuant to a plan) that has the result that
shareholders of the Company immediately before such transaction
cease to own at least 51% of (x) the voting stock of the Company
or (y) any entity that results from the participation of the
Company in a reorganization, consolidation, merger, liquidation
or any other form of corporate transaction; (ii) is a merger,
consolidation, reorganization, liquidation or dissolution in
which the Company does not survive; or (iii) is a sale, lease,
exchange or other disposition of all or substantially all the
property and assets of the Company.
2
<PAGE>
Section 3. Term of Option. This Option may not be exercised after the
expiration of ten (10) years from the date hereof and is subject to earlier
termination as provided in Section 4. In addition, this Option is subject to
cancellation by the Company upon a significant corporate event as provided in
Section 4 below. This Option may be exercised during such times only in
accordance with the terms of this Option Agreement.
Section 4. Termination of Option Period.
(a) The unexercised portion of this Option shall
automatically and without notice terminate and become null and
void at the time of the earliest to occur of the following:
(i) termination of Optionee's employment pursuant to
Subsection 6.1 of Optionee's Executive Employment Agreement
of even date herewith; or
(ii) the tenth (10th) anniversary of the date hereof of
this Option.
(b) The Company in its sole discretion may, by giving
written notice (a "Cancellation Notice") cancel, effective upon
the date of the consummation of any of the transactions described
in Section 2(e), all or any portion of this Option that remains
unexercised on such date. Such Cancellation Notice shall be given
a reasonable period of time (but not less than 15 days) prior to
the proposed date of such cancellation, and may be given either
before or after shareholder approval of such transaction.
Section 5. Adjustment of Shares.
(a) If at any time while unexercised Options are outstanding
hereunder, there shall be any increase or decrease in the number
of issued and outstanding shares of Common Stock through the
declaration of a stock dividend or through any recapitalization
resulting in a stock split-up, combination or exchange of shares,
then, and in such event, appropriate adjustment shall be made in
the number of Shares and the exercise price per Share thereof
then subject to this Option, so that the same proportion of the
Company's issued and outstanding shares shall remain subject to
purchase at the same aggregate exercise price.
(b) The Company may change the terms of this Option, with
respect to the exercise price or the number of Shares subject to
this Option, or both, when, in the Company's sole discretion,
such adjustments become appropriate by reason of any significant
corporate transaction.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any
class, or securities convertible into shares of capital stock of
any class, either in connection with direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to the
number of or exercise price of Shares then subject to this
Option.
3
<PAGE>
(d) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right
or power of the Company to make, authorize or consummate (i) any
or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business; (ii)
any merger or consolidation of the Company; (iii) any issue by
the Company of debt securities, or preferred or preference stock
that would rank above the Shares subject to this Option; (iv) the
dissolution or liquidation of the Company; (v) any sale, transfer
or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether
of a similar character or otherwise.
Section 6. Non-Assignability of Option. This Option may not be trans-
ferred or assigned by the Optionee other than by will or by the laws of descent
and distribution.
Section 7. Issuance of Shares. No person shall be, or have any rights
or privileges of, a shareholder of the Company with respect to any of the Shares
subject to this Option unless and until certificates representing such Shares
have been issued and delivered to such person. As a condition of an issuance of
a stock certificate for Shares, the Company may obtain such agreements or
undertakings, if any, as it may deem necessary or advisable to assure compliance
with any provision of this Option Agreement or any law or regulation, including,
but not limited to, the following:
(a) The Optionee's representation and warranty to the
Company, at the time the Option is exercised, that the Shares to
be issued are being acquired for investment and not with a view
to, or for sale in connection with, the distribution of any such
Shares; and
(b) the Optionee's representation, warranty or agreement to
be bound by any legends that are, in the opinion of the Company,
necessary or appropriate to comply with the provisions of any
securities law deemed by the Company to be applicable to the
issuance of the Shares and to be endorsed upon the certificates
representing the Shares.
Section 8. Administration of this Option.
(a) The determinations and the interpretation and
construction of any provision of this Option by the Company shall
be final and conclusive.
(b) Subject to the express provisions of this Option, the
Company shall have the authority, in its sole and absolute
discretion (i) to adopt, amend, and rescind administrative and
interpretive rules and regulations relating to this Option; (ii)
to construe the terms of this Option; (iii) as provided in
Section 5, upon certain events to make appropriate adjustments to
the exercise price and number of Shares subject to this Option;
and (iv) to make all other determinations and perform all other
acts necessary or advisable for administering this Option,
including the delegation of such ministerial acts and
responsibilities as the Company deems appropriate. The Company
may correct any defect or supply any omission or reconcile any
inconsistency in this Option in the manner and to the extent it
shall deem expedient to carry it into effect, and it shall be the
sole and final judge of such expediency. The Company shall have
full discretion to make all determinations on the matters
referred to in this Section 8(b), and such determinations shall
be final, binding and conclusive.
4
<PAGE>
Section 9. Government Regulations. The granting and exercise of this
Option and the obligation of the Company to sell and deliver Shares under this
Option, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
Section 10. Law Governing. THIS OPTION IS INTENDED TO BE PERFORMED IN
THE STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE.
Section 11. Notices. All notices and other communications that are
required to be or may be given under this Option Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person,
transmitted by confirmed telecopy, upon receipt after dispatch by courier or by
certified or registered mail, postage prepaid, to the party to whom the notice
is given. Notices shall be given at the address under the signature of the
appropriate party to this Option Agreement or to such other address as such
party may designate by giving written notice to the other party to this Option
Agreement.
Section 12. Miscellaneous.
(a) The grant of this Option is in addition to any other
compensation that may be paid to the Optionee or other stock
option plans of the Company or other benefits with respect to the
Optionee's position with or relationship to the Company or its
subsidiaries. This Option shall not confer upon the Optionee the
right to continue as an employee, consultant or advisor, or
interfere in any way with the rights of the Company to terminate
the Optionee's status as an employee, consultant or advisor.
(b) The members of the Board of Directors of the Company
shall not be liable for any act, omission or determination taken
or made in good faith with respect to this Option, and members of
the Board shall, in addition to all other rights of
indemnification and reimbursement, be entitled to indemnification
and reimbursement by the Company in respect of any claim, loss,
damage, liability or expense (including attorneys' fees, the
costs of settling any suit, provided such settlement is approved
by independent legal counsel selected by the Company, and amounts
paid in satisfaction of a judgment, except a judgment based on a
finding of bad faith) arising from such claim, loss, damage,
liability or expense to the full extent permitted by law and
under any directors' and officers' liability or similar insurance
coverage that may from time to time be in effect.
(c) Any issuance or transfer of Shares to the Optionee, or
to the Optionee's legal representative, heir, legatee, or
distributee, in accordance with the provisions of this Option,
shall, to the extent thereof, be in full satisfaction of all
claims of such persons under this Option. The Company may require
the Optionee, or any legal representative, heir, legatee or
distributee as a condition precedent to such payment or issuance
or transfer of Shares, to execute a release and receipt for such
payment or issuance or transfer of Shares in such form as it
shall determine.
5
<PAGE>
(d) Neither the Board nor the Company guarantees Shares from
loss or depreciation.
(e) All expenses incident to the administration,
termination, or protection of this Option, including, but not
limited to, legal and accounting fees, shall be paid by the
Company; provided, however, the Company may recover any and all
damages, fees, expenses and costs arising out of any actions
taken by the Company to enforce its rights under this Option.
(f) Records of the Company shall be conclusive for all
purposes under this Option, unless determined by the Board to be
incorrect.
(g) Any action required of the Company relating to this
Option shall be by resolution of the Board or by a person
authorized to act by resolution of the Board.
(h) If any provision of this Option is held to be illegal or
invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of this Option, but such
provision shall be fully severable, and this Option shall be
construed and enforced as if the illegal or invalid provision had
never been included in this Option.
(i) Whenever any notice is required or permitted under this
Option, such notice must be in writing and personally delivered
or sent by mail or delivery by a nationally recognized courier
service. Any notice required or permitted to be delivered under
this Option shall be deemed to be delivered on the date on which
it is personally delivered, or, if mailed, whether actually
received or not, on the third Business Day after it is deposited
in the United States mail, certified or registered, postage
prepaid, addressed to the person who is to receive it at the
address that such person has previously specified by written
notice delivered in accordance with this subsection or, if by
courier, seventy-two (72) hours after it is sent, addressed as
described in this subsection. The Company or the Optionee may
change, at any time and from time to time, by written notice to
the other, the address that was previously specified for
receiving notices. Until changed in accordance with this Option,
the Company and the Optionee shall specify as its or his address
for receiving notices the address set forth in this Option
pertaining to the Shares to which such notice relates.
(j) Any person entitled to notice under this Option may
waive such notice.
(k) This Option shall be binding upon the Optionee, his
legal representatives, heirs, legatees and distributees upon the
Company, its successors, and assigns, and upon the Board and its
successors.
(l) The titles and headings of Sections are included for
convenience of reference only and are not to be considered in
construction of this Option's provisions.
(m) Words used in the masculine shall apply to the feminine
where applicable, and wherever the context of this Option
dictates, the plural shall be read as the singular and the
singular as the plural.
6
<PAGE>
Date hereof: FIRSTPLUS FINANCIAL GROUP, INC.
February 27, 1997
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Address:
1600 Viceroy Dr.
Dallas, Texas 75235
7
<PAGE>
Optionee hereby accepts this Option subject to all the terms and
provisions of this Option Agreement.
By:
-------------------------
William G. Joiner
Optionee
-----------------------------------
(Social Security No.)
Address:
9 Lagunita
Laguna Beach, California 92651
8
Exhibit 4.7
TERMS OF
RESTRICTED STOCK GRANTS TO JACK ROUBINEK
ARTICLE 1
1.1 Compensation Upon Termination.
(a) Termination by the Company without cause or for
nonperformance due to disability. If the Company terminates Jack
Roubinek's (the "Employee") employment without cause or for
nonperformance due to disability, then the Employee's right to receive
shares of restricted common stock of the Company (the "Shares") will
continue to vest according to the vesting schedule in Section 3.1.
(b) Termination by the Company for cause or by the Employee
without good reason. If the Company terminates the Employee's
employment for cause or if the Employee terminates his employment
without good reason, then the Employee's right to receive Shares that
have not vested according to Section 3.1 on the date of termination
will expire.
(c) Termination by the Employee for Company breach. If the
Employee terminates his employment because of a breach by the Company
of an employment-related covenant, then the Employee's right to receive
Shares will continue to vest according to Section 3.1.
ARTICLE 2
2.1 Remedies. If the Employee breaches certain covenants of his
employment, then the Company will be entitled to forfeiture by the Employee of
any Shares granted to the Employee under Section 3.1 for which the restrictions
in Section 3.2 have not lapsed at the time of such breach.
ARTICLE 3
Restricted Stock Grant
----------------------
3.1 Restricted Stock Grant. Subject to the terms and conditions
contained herein, the Company will issue an aggregate of 40,000 Shares to the
Employee in accordance with the following vesting schedule:
Number of Shares Issue Date
---------------- ----------
8,000 April 2, 1997
8,000 April 2, 1998
8,000 April 2, 1999
8,000 April 2, 2000
8,000 April 2, 2001
3.2 Conditional Vesting. Notwithstanding anything herein to the
contrary, the Company will have no obligation to issue Shares that have not yet
vested according to the schedule in Section 3.1 if (a) the Employee's employment
is terminated by the Company for cause or by the Employee without good reason;
(b) if the Employee breaches any term, condition, or provision of his restricted
stock grants ("Grants"); (c) if the Employee violates certain covenants of his
employment, whether or not such covenants are held to be enforceable; and (d) if
the Employee challenges certain covenants of his employment, or if such cove-
nants are found to be invalid or unenforceable by a court of competent jurisdic-
tion or by arbitration.
- 1 -
<PAGE>
3.3 Issuance Subject to Company Trading Policy. The Employee has agreed
that the provisions of the Company's written policies pertaining to Company
personnel stock trading will apply in all respects to the Grants. Such
provisions will apply to the Employee at all times that the Employee is an
employee, consultant, or otherwise potentially in possession of material
nonpublic information concerning the Company.
3.4 Issuance Subject to Applicable Laws. The issuance of the Shares is
expressly conditioned upon compliance with the Securities Act of 1933, as
amended (the "Securities Act"), all applicable state securities laws and all
applicable requirements of any stock exchange or over the counter market on
which the Company's Common Stock may be listed or traded at the time of vesting
and issuance. The Employee has agreed to cooperate with the Company to ensure
compliance with such laws.
3.5. Representations of the Employee. The Employee has acknowledged
that the Shares have not been registered under the Securities Act or any state
securities law and therefore such Shares are "restricted stock" and not
transferable for at least two (2) years from the date of issuance. The Employee
has agreed not to sell, transfer, hypothecate, or otherwise transfer such Shares
except pursuant to an effective registration statement or pursuant to an opinion
of counsel acceptable to the Company that such Shares may be transferred without
violating any state or federal securities law. The Employee is being granted
such Shares for investment and not for resale.
3.6 Change of Control. In the event of a Change of Control (as defined
below) of the Company, and at any time thereafter the Employee is terminated by
the Company or its successor, as applicable, without cause or for nonperformance
due to disability, then all of the Employee's Shares that have not vested prior
to such termination will be immediately vested upon, and issued to Employee as
soon as practicable after, such termination. "Change of Control" shall mean
either of the following:
(a) any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to
which shares of the Common Stock of the Company would be converted into
cash, securities or other property, other than a merger of the Company
in which the holders of the Common Stock of the Company immediately
prior to the merger have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger; or
(b) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company.
ARTICLE 4
Registration Rights
4.1 Piggyback Registration.
(a) If the Company proposes to file a registration statement
on Form S-3 under the Securities Act relating to any of its Common
Stock (other than a registration statement on Form S-3 to register
shares issuable upon the exercise of options by affiliates of the
Company), the Company will promptly, but in any event not less than
thirty (30) days prior to the initial filing of such registration
statement, deliver written notice of such intention to the Employee
setting forth the intended method of disposition, the maximum proposed
offering price, commissions and discounts in connection therewith and
other relevant information. If the Employee so requests within ten (10)
days after such notification, the Company will to use its best
reasonable efforts to register any Shares that have prior thereto
vested according to the Schedule in Section 3.1 that the Employee
requests to be registered by inclusion in such registration statement
so that such Shares may be sold at such times and in such manner as the
- 2 -
<PAGE>
Employee thereof determines. The Company may withdraw or cease
proceeding with such piggyback registration of Shares if at the same
time it withdraws or ceases proceeding with the registration of the
shares of Common Stock that gave rise to the piggyback registration
rights of the Employee under this Section 4.1.
(b) If the registration statement that the Company proposes to
file relates to an underwritten public offering of Common Stock, the
Shares will be subject to the underwriting agreement among the
underwriter or underwriters and the Company. Notwithstanding any other
provision of this Section 4.1, if the underwriter determines that
marketing factors require a limitation of the number of shares of
Common Stock to be underwritten, the Company will so advise all selling
holders of shares of Common Stock, and the Company will include in the
underwritten registration (i) first, the Common Stock the Company
proposes to sell, and (ii) second, the number of shares requested to be
included therein by the shareholders of the Company who have requested
inclusion of their shares of Common Stock pursuant to registration
rights granted to them pro rata based on the number of shares requested
to be included therein by such shareholders. If the Employee
disapproves of the terms of any such underwriting, he may elect to
withdraw by written notice to the Company and the managing underwriter.
4.2 Costs and Expenses. All costs and expenses in connection with the
registration of any Shares under Section 4.1 (to the extent that the payment by
the Company of such expenses is not prohibited by applicable law), including
federal and state registration and filing fees, printing expenses (including
such number of any preliminary and final prospectuses as may be reasonably
requested) and the fees and disbursements of counsel and of independent
accountants and other experts of the Company will be borne by the Company;
provided, however, that the Company will not be obligated to pay fees and
disbursements of counsel for the Employee, any underwriting commissions or
discounts relating to the Shares or any stock transfer taxes relating to the
Shares.
4.3 Indemnification. By requesting Shares to be covered by any
registration statement in accordance with Section 4.1, the Employee agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, and each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages, liabilities (or actions in respect thereto)
or expenses to which the Company or any such director, officer or controlling
Person may become subject under the Securities Act, or otherwise, insofar as
such losses, claims, damages, liabilities (or actions in respect thereof) or
expenses arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in such registration statement (or amendment
thereto), or prospectus (or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the Employee
specifically for use in the preparation thereof.
- 3 -
Exhibit 4.8
AMENDED AND RESTATED
FIRSTPLUS FINANCIAL GROUP, INC.
1998 LONG TERM INCENTIVE PLAN
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
TABLE OF CONTENTS
PAGE
SECTION 1. GENERAL PROVISIONS RELATING
TO PLAN GOVERNANCE, COVERAGE AND BENEFITS.......................................................1
1.1 Purpose.........................................................................................1
1.2 Definitions.....................................................................................1
1.3 Administration..................................................................................4
1.4 Shares of Common Stock Subject to the Plan......................................................5
1.5 Participation...................................................................................6
1.6 Incentive Awards................................................................................6
SECTION 2. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS...........................................................6
2.1 Grant Of Options................................................................................6
2.2 Option Terms....................................................................................6
2.3 Option Exercises................................................................................7
2.4 Stock Appreciation Rights in Tandem with Options................................................8
2.5 Supplemental Payment on Exercise of Non-Qualified Stock
Options or Stock Appreciation Rights............................................................8
SECTION 3. RESTRICTED STOCK......................................................................................9
3.1 Award of Restricted Stock.......................................................................9
3.2 Restrictions....................................................................................9
3.3 Restriction Period.............................................................................10
3.4 Delivery of Shares of Common Stock.............................................................10
3.5 Supplemental Payment on Vesting of Restricted Stock............................................10
SECTION 4. PERFORMANCE UNITS AND PERFORMANCE SHARES.............................................................10
4.1 Performance Based Awards.......................................................................10
4.2 Supplemental Payment on Vesting of Performance Units or
Performance Shares ............................................................................11
SECTION 5. PROVISIONS RELATING TO PLAN PARTICIPATION............................................................12
5.1 Plan Conditions................................................................................12
5.2 Transferability................................................................................12
5.3 Rights as a Stockholder........................................................................13
5.4 Listing and Registration of Shares of Common Stock.............................................13
5.5 Change in Stock and Adjustments................................................................13
5.6 Termination of Employment, Death, Disability and Retirement....................................14
5.7 Changes in Control.............................................................................15
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5.8 Amendments to Incentive Awards.................................................................16
5.9 Exchange of Incentive Awards; Repricing........................................................16
5.10 Financing......................................................................................17
SECTION 6. MISCELLANEOUS........................................................................................17
6.1 Effective Date and Grant Period................................................................17
6.2 Funding........................................................................................17
6.3 Withholding Taxes..............................................................................18
6.4 Conflicts with Plan............................................................................18
6.5 No Guarantee of Tax Consequences...............................................................18
6.6 Severability...................................................................................18
6.7 Gender, Tense and Headings.....................................................................18
6.8 Amendment and Termination......................................................................18
6.9 Section 280G Payments..........................................................................19
6.10 Governing Law..................................................................................19
</TABLE>
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AMENDED AND RESTATED
FIRSTPLUS FINANCIAL GROUP, INC.
1998 LONG TERM INCENTIVE PLAN
SECTION 1. GENERAL PROVISIONS RELATING
TO PLAN GOVERNANCE, COVERAGE AND BENEFITS
1.1 Purpose
The purpose of the Amended and Restated FIRSTPLUS Financial Group, Inc.
1998 Long Term Incentive Plan (the "Plan") is to foster and promote the
long-term financial success of FIRSTPLUS Financial Group, Inc. (the "Company" or
"FIRSTPLUS") and materially increase the value of the equity interests in the
Company by: (a) encouraging the long-term commitment of selected key employees
(defined in Section 1.2(i) below), (b) motivating superior performance of key
employees by means of long-term performance related incentives, (c) encouraging
and providing key employees with a formal program for obtaining an ownership
interest in the Company, (d) attracting and retaining outstanding key employees
by providing incentive compensation opportunities competitive with other major
companies and (e) enabling participation by key employees in the long-term
growth and financial success of the Company. The Plan provides for payment of
various forms of incentive compensation and, accordingly, is not intended to be
a plan that is subject to the Employee Retirement Income Security Act of 1974,
as amended, and shall be administered accordingly.
1.2 Definitions
The following terms shall have the meanings set forth below:
(a) Appreciation. The difference between the option exercise price per
share of the Option to which a Tandem Stock Appreciation Right relates and the
Fair Market Value of a share of Common Stock on the date of exercise of the
Tandem SAR.
(b) Board. The Board of Directors (or equivalent governing authority)
of the Company.
(c) Change in Control. Any of the events described in and subject to
Section 5.7.
(d) Code. The Internal Revenue Code of 1986, as amended.
(e) Compensation Committee or Committee. The Committee, which shall be
comprised of two or more members of the Board who shall be appointed by the
Board to administer the Plan, which Board shall have the power to fill vacancies
on the Committee arising by resignation, death, removal or otherwise. In the
absence of a Committee, reference thereto shall be to the Board.
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(f) Common Stock. Company Common Stock, par value $.01 per share, which
the Company is authorized to issue or may in the future be authorized to issue.
(g) Company. FIRSTPLUS Financial Group, Inc., its subsidiaries and any
successor corporation.
(h) Disability. Any complete and permanent disability as defined in
Section 22(e)(3) of the Code and determined in accordance with the procedures
set forth in the regulations thereunder.
(i) Employee. Any common-law employee of the Company or any parent or
Subsidiary, who, in the opinion of the Committee, is one of a select group of
executive officers, other officers or other key management personnel of the
Company or any parent or Subsidiary who is in a position to contribute
materially to the continued growth and development and to the continued
financial success of the Company or any parent or Subsidiary, including
executive officers and officers who are members of the Board and including
consultants and advisors.
(j) Exchange Act. The Securities Exchange Act of 1934, as amended.
(k) Fair Market Value. The closing sales price of Common Stock as
reported or listed on a national securities exchange on any relevant date for
valuation, or, if there is no such sale on such date, the applicable price as so
reported on the nearest preceding date upon which such sale took place. In the
event the shares of Common Stock are not listed on a national securities
exchange, the Fair Market Value of such shares shall be determined by the
Committee in its sole discretion.
(l) Grantee. Any Employee who in the opinion of the Committee performs
significant services for the benefit of the Company and who is granted an
Incentive Award under the Plan.
(m) Incentive Award. Any incentive award, individually or collectively,
as the case may be, including any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Unit, or Performance Share, as well as any Supplemental
Payment, granted under the Plan.
(n) Incentive Award Agreement. The written agreement entered into
between the Company and the Grantee pursuant to which an Incentive Award shall
be made under the Plan.
(o) Incentive Stock Option. A stock option which is intended to qualify
as an Incentive Stock Option under Section 422 of the Code and which shall be
granted by the Committee to a Grantee under the Plan.
(p) Involuntary Termination. The termination of Grantee's employment by
FIRSTPLUS other than for death, Disability, Retirement, Terminated for Cause or
Termination for Good Reason.
(q) Non-Qualified Stock Option. A stock option granted by the Committee
to a Grantee under the Plan, which shall not qualify as an Incentive Stock
Option.
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(r) Option. A Non-Qualified Stock Option or Incentive Stock Option
granted by the Committee to a Grantee under the Plan.
(s) Parent Corporation. FIRSTPLUS Financial Group, Inc.
(t) Performance Period. A period of time determined by the Committee
over which performance is measured for the purpose of determining a Grantee's
right to and the payment value of any Performance Units or Performance Shares.
(u) Performance Share or Performance Unit. An Incentive Award
representing a contingent right to receive cash or shares of Common Stock (which
may be Restricted Stock) at the end of a Performance Period and which, in the
case of Performance Shares, is denominated in Common Stock, and, in the case of
Performance Units, is denominated in cash values.
(v) Plan. Amended and Restated FIRSTPLUS Financial Group, Inc. 1998
Long Term Incentive Plan, as may be amended from time to time.
(w) Restricted Stock. Shares of Common Stock issued or transferred to a
Grantee subject to the Restrictions set forth in Section 3.2 hereof.
(x) Restricted Stock Award. An authorization by the Committee to issue
or transfer Restricted Stock to a Grantee.
(y) Restriction Period. The period of time determined by the Committee
during which Restricted Stock is subject to the restrictions under the Plan.
(z) Retirement. The termination of employment by the Company or any
parent or Subsidiary constituting retirement, as determined by the Committee.
(aa) Subsidiary. Any corporation (whether now or hereafter existing)
which constitutes a "subsidiary" of the Company, as defined in Section 424(f) of
the Code.
(bb) Supplemental Payment. Any amounts described in Sections 2.5, 3.5
and/or 4.2 dedicated to payment of any federal income taxes that are payable
with respect to an Incentive Award as determined by the Committee.
(cc) Tandem Stock Appreciation Right (or "Tandem SAR"). A Stock
Appreciation Right described in Section 2.4 granted by the Committee to a
Grantee under the Plan.
(dd) Terminated for Cause. An Employee shall be deemed Terminated for
Cause if he or she is terminated as a result of a breach of his or her written
employment agreement (or consulting or advisory contract), in the event one
exists, or if the Committee determines that such Employee is being terminated as
a result of intentional misapplication of funds, conviction of a crime involving
moral turpitude, drug use or alcohol abuse, nonperformance of Employee's duties,
commission of an act that negatively affects the Commpany's business or reputa-
tion or any other action involving willful and deliberate malfeasance or gross
negligence in the performance of Employee's duties.
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(ee) Termination for Good Reason. The resignation of an Employee shall
be deemed to be a Termination for Good Reason if Employee's resignation is
within two years after a Change in Control as defined in Section 5.7, caused by
and within ninety (90) days after the following: (i) without the express written
consent of Employee, any duties are assigned that are materially inconsistent
with Employee's position, duties and status with FIRSTPLUS at the time of the
Change in Control; (ii) any action by FIRSTPLUS that results in a material
diminution in the position, duties or status of Employee with FIRSTPLUS at the
time of the Change in Control or any transfer or proposed transfer of Employee
for any extended period to a location outside his principal place of employment
at the time of the Change in Control without his consent, except for a transfer
or proposed transfer for strategic reallocations of the personnel reporting to
Employee; (iii) the base annual salary of Employee, as the same may hereafter be
increased from time to time, is reduced; or (iv) without limiting the generality
or effect of the foregoing, FIRSTPLUS fails to comply with any of its material
obligations hereunder.
1.3 Administration
(a) Committee Powers. The Plan shall be administered by the Committee,
which shall have full power and authority to: (i) designate Grantees; (ii)
determine the Incentive Awards to be granted to Grantees; (iii) subject to
Section 1.4 of the Plan, determine the Common Stock (or securities convertible
into Common Stock) to be granted pursuant to Incentive Awards and in connection
therewith, to reserve shares of Common Stock as needed in order to grant
Incentive Awards; (iv) determine the terms and conditions of any Incentive
Award; (v) determine whether, to what extent, and under what circumstances
Incentive Awards may be settled or exercised in cash, Common Stock, other
securities, or other property, or canceled, substituted, forfeited or suspended,
and the method or methods by which Incentive Awards may be settled, exercised,
canceled, substituted, forfeited or suspended; (vi) interpret and administer the
Plan and any instrument or agreement relating to, or Incentive Award made under,
the Plan; (vii) establish, amend, suspend or waive such rules and guidelines as
the Committee shall deem necessary or appropriate for administration of the
Plan; (viii) appoint such agents as it shall deem appropriate for the
administration of the Plan; provided, however, that the Committee shall not
delegate any of the power or authority set forth in (i) through (vii) above; and
(ix) make any other determination and take any other action that it deems
necessary or desirable for such administration. No member of the Committee shall
vote or act upon any matter relating solely to himself. All designations,
determinations, interpretations and other decisions with respect to the Plan or
any Incentive Award shall be within the sole discretion of the Committee and
shall be final, conclusive and binding upon all persons, including the Company
or any parent or Subsidiary, any Grantee, any holder or beneficiary of any
Incentive Award, any owner of an equity interest in the Company and any
Employee.
(b) No Liability. No member of the Committee shall be liable for any
action or determination made in good faith by the Committee with respect to this
Plan or any Incentive Award under this Plan, and, to the fullest extent permit-
ted by the Company's Articles of Incorporation and Bylaws, the Company shall in-
demnify each member of the Committee with respect thereto.
4
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(c) Meetings. The Committee shall designate a chairman from among its
members, who shall preside at all of its meetings, and shall designate a
secretary, without regard to whether that person is a member of the Committee,
who shall keep the minutes of the proceedings and all records, documents, and
data pertaining to its administration of the Plan. Meetings shall be held at
such times and places as shall be determined by the Committee. The Committee may
take any action otherwise proper under the Plan by the affirmative vote, taken
with or without a meeting, of a majority of its members.
1.4 Shares of Common Stock Subject to the Plan
(a) Common Stock Authorized. Subject to adjustment under Section 5.5,
the aggregate number of shares of Common Stock available for granting Incentive
Awards under the Plan shall be equal to Two Million (2,000,000) shares of
FIRSTPLUS Common Stock. If any Incentive Award shall expire or terminate for any
reason, without being exercised or paid, shares of Common Stock subject to such
Incentive Award shall again be available for grant in connection with grants of
subsequent Incentive Awards.
(b) Common Stock Available. The FIRSTPLUS Common Stock available for
issuance or transfer under the Plan shall be made available from such shares
reserved under the Amended and Restated FIRSTPLUS Financial Group, Inc. 1998
Long Term Incentive Plan, from such shares now or hereafter held by the Company
or from such shares to be purchased or acquired by the Company. The Common Stock
available for issuance or transfer under the Plan, if applicable, shall be made
available from shares now or hereafter held by the Company or from such shares
to be purchased or acquired by the Company. No fractional shares shall be issued
under the Plan; payment for fractional shares shall be made in cash.
(c) Incentive Award Adjustments. Subject to the limitations set forth
in Sections 5.8 and 6.8, the Committee may make any adjustment in the exercise
price or the number of shares subject to any Incentive Award, or any other terms
of any Incentive Award. Such adjustment shall be made by amending, substituting
or canceling and re-granting such Incentive Award with the inclusion of terms
and conditions that may differ from the terms and conditions of the original
Incentive Award. If such action is effected by amendment, the effective date of
such amendment shall be the date of the original grant.
1.5 Participation
(a) Eligibility. The Committee shall from time to time designate those
Employees, if any, to be granted Incentive Awards under the Plan, the type of
awards granted, the number of shares, options, rights or units, as the case may
be, which shall be granted to each such Employee and any other terms or
conditions relating to the awards as it may deem appropriate, consistent with
5
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the provisions of the Plan. An Employee who has been granted an Incentive Award
may, if otherwise eligible, be granted additional Incentive Awards at any time.
(b) No Non-Employee Board Participation. In no event may any member of
the Board who is not an employee of the Company be granted an Incentive Award
under the Plan.
1.6 Incentive Awards
The forms of Incentive Awards under this Plan are Options, Tandem Stock
Appreciation Rights and Supplemental Payments as described in Section 2,
Restricted Stock and Supplemental Payments as described in Section 3, and
Performance Units or Performance Shares and Supplemental Payments as described
in Section 4.
SECTION 2. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
2.1 Grant Of Options
The Committee is authorized to grant Options (Non-Qualified Stock
Options or Incentive Stock Options) to Grantees in accordance with the terms and
conditions of this Plan and with such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall determine.
2.2 Option Terms
(a) Exercise Price. The exercise price per share of Common Stock under
each Option shall be determined by the Committee; provided, however, that, in
the case of an Incentive Stock Option, such exercise price shall not be less
than 100% of the Fair Market Value per share of such stock on the date the
Option is granted, as determined by the Committee (110% in the case of an
Incentive Stock Option granted to a ten-percent stockholder) and, provided
further, that, in the case of Non-Qualified Stock Options, no more than 10% of
the aggregate number of shares of Common Stock authorized for grant as Incentive
Awards under the Plan may be granted at an exercise price less than 100% of the
Fair Market Value per share of such stock on the date the Option is granted, and
in no event shall such Options shall be granted at an exercise price less than
85% of such Fair Market Value.
(b) Term. The Committee shall fix the term of each Option which, in the
case of an Incentive Stock Option, shall be not more than ten years from the
date of grant. In the event no term is fixed, such term shall be ten years from
the date of grant. The term shall be five years in the case of an Incentive
Stock Option granted to a ten-percent stockholder.
(c) Exercise. The Committee shall determine the time or times at which
an Option may be exercised in whole or in part. The Committee may accelerate the
exercisability of any Option in portion thereof at any time. Notwithstanding the
foregoing, the Committee may, in its sole discretion, provide that all or part
of the shares of Common Stock received by a Grantee upon the exercise of a Non-
Qualified Stock Option shall be Restricted Stock subject to any or all of the
restrictions or conditions set forth in Section 3.2
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(d) Incentive Stock Options. In the case of Incentive Stock Options,
the terms and conditions of such grants shall be subject to and comply with
Section 422 of the Code and any rules or regulations promulgated thereunder,
including the requirement that the aggregate Fair Market Value (determined as of
date the date of grant) of the Common Stock with respect to which Incentive
Stock Options granted under this Plan and all other option plans of the Company,
the parent and subsidiary become exercisable by a Grantee during any calendar
year shall not exceed $100,000. To the extent that the limitation set forth in
the preceding sentence is exceeded for any reason (including the acceleration of
the time for exercise of an Option), the Option with respect to such excess
amount shall be treated as Non-Qualified Stock Options.
2.3 Option Exercises
(a) Method of Exercise. To purchase shares under any Option granted
under the Plan, Grantees must give notice in writing to the Company of their
intention to purchase and specify the number of shares of Common Stock as to
which they intend to exercise their Option. Upon the date or dates specified for
the completion of the purchase of the shares, the purchase price will be payable
in full. The purchase price may be paid in cash or an equivalent acceptable to
the Committee. At the discretion of the Committee, the exercise price per share
of Common Stock may be paid by the assignment and delivery to the Company of
shares of Common Stock owned by the Grantee or a combination of cash and such
shares equal in value to the exercise price. However, if the Grantee acquired
the stock to be surrendered directly or indirectly from the Company, he must
have owned the stock to be surrendered for at least six months prior to
tendering such stock for the exercise of an Option. Any shares so assigned and
delivered to the Company in payment or partial payment of the purchase price
shall be valued at the Fair Market Value on the exercise date. In addition, at
the request of the Grantee and to the extent permitted by applicable law, the
Company in its discretion may selectively approve a "cashless exercise"
arrangement with a brokerage firm under which such brokerage firm, on behalf of
the Grantee, shall pay to the Company the exercise price of the Options being
exercised, and the Company, pursuant to an irrevocable notice from the Grantee,
shall promptly deliver the shares being purchased to such firm.
(b) Proceeds. The proceeds received by the Company from the sale of
shares of Common Stock pursuant to Options exercised under the Plan will be used
for general purposes of the Company.
2.4 Stock Appreciation Rights in Tandem with Options
(a) General Provisions. The Committee may, at the time of grant of an
Option, grant Tandem SARs with respect to all or any portion of the shares of
Common Stock covered by such Option. The exercise price per share of Common
Stock of a Tandem SAR shall be fixed in the Incentive Award Agreement and shall
not be less than one hundred percent (100%) of the Fair Market Value of a share
of Common Stock on the date of the grant of the Option to which it relates.
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A Tandem SAR may be exercised at any time the Option to which it relates is then
exercisable, but only to the extent the Option to which it relates is
exercisable, and shall be subject to the conditions applicable to such Option.
When a Tandem SAR is exercised, the Option to which it relates shall terminate
to the extent of the number of shares with respect to which the Tandem SAR is
exercised. Similarly, when an Option is exercised, the Tandem SARs relating to
the shares covered by such Option exercise shall terminate. Any Tandem SAR that
is outstanding on the last day of the term of the related Option shall be
automatically exercised on such date for cash without any action by the Grantee.
(b) Exercise. Upon exercise of a Tandem SAR, the holder shall receive,
for each share with respect to which the Tandem SAR is exercised, an amount
equal to the Appreciation. The Appreciation shall be payable in cash, Common
Stock, or a combination of both, at the option of the Committee, and shall be
paid within 30 calendar days of the exercise of the Tandem SAR.
2.5 Supplemental Payment on Exercise of Non-Qualified Stock Options or
Tandem Stock Appreciation Rights
The Committee, either at the time of grant or at the time of exercise
of any Non-Qualified Stock Option or Tandem Stock Appreciation Right, may
provide for a supplemental payment (the "Supplemental Payment") by the Company
to the Grantee with respect to the exercise of any NonQualified Stock Option or
Tandem SAR. The Supplemental Payment shall be in the amount specified by the
Committee, which shall not exceed the amount necessary to pay the federal income
tax payable with respect to both the exercise of the Non-Qualified Stock Option
and/or Tandem Stock Appreciation Right and the receipt of the Supplemental
Payment, assuming the holder is taxed at the maximum effective federal income
tax rate applicable thereto. The Committee shall have the discretion to grant
Supplemental Payments that are payable solely in cash or Supplemental Payments
that are payable in cash, Common Stock, or a combination of both, as determined
by the Committee at the time of payment. The Supplemental Payment shall be paid
within 30 calendar days of the date of exercise of a Non-Qualified Stock Option
or Tandem Stock Appreciation Right (or within 30 calendar days of the date on
which income is recognized for federal income tax purposes with respect to such
exercise, whichever is later).
SECTION 3. RESTRICTED STOCK
3.1 Award of Restricted Stock
(a) Grant. In consideration of the performance of services by the
Grantee, shares of Restricted Stock may be awarded under this Plan by the
Committee on such terms and conditions and with such restrictions as the
Committee may from time to time approve, all of which may differ with respect to
each Grantee. Such Restricted Stock shall be awarded for no additional
consideration or such additional consideration as the Committee shall determine.
(b) Immediate Transfer Without Immediate Delivery of Restricted Stock.
Each Restricted Stock Award will constitute an immediate transfer of the record
and beneficial ownership of the shares of Restricted Stock to the Grantee in
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consideration of the performance of services, entitling such Grantee to all
voting and other ownership rights, but subject to the restrictions hereinafter
referred to. Each Restricted Stock Award may limit the Grantee's dividend rights
during the Restriction Period in which the shares of Restricted Stock are
subject to a substantial risk of forfeiture and restrictions on transfer. Shares
of Common Stock awarded pursuant to a grant of Restricted Stock will be held by
the Company, or in trust or in escrow pursuant to an agreement satisfactory to
the Committee, as determined by the Committee, until such time as the
restrictions on transfer have expired. Any such trust or escrow shall not be
insulated from the claims of the general creditors of the Company in the event
of bankruptcy or insolvency of the Company.
3.2 Restrictions
(a) Restrictive Conditions. Restricted Stock awarded to a Grantee shall
be subject to the following restrictions until the expiration of the Restriction
Period: (i) the shares of Common Stock of the Company included in the Restricted
Stock Award shall be subject to one or more restrictions, including without
limitation, a restriction that constitutes a "substantial risk of forfeiture"
within the meaning of Section 83 of the Code and regulations promulgated
thereunder, and to the restrictions on transferability set forth in Section 5.2;
(ii) unless otherwise approved by the Committee, the shares of Common Stock
included in the Restricted Stock Award that are subject to restrictions that are
not satisfied at such time the Grantee ceases to be employed by the Company
shall be forfeited and all rights of the Grantee to such shares shall terminate
without further obligation on the part of the Company when an Employee leaves
the employ of the Company; and (iii) any other restrictions that the Committee
may determine in advance are necessary or appropriate.
(b) Forfeiture of Restricted Stock. If for any reason, the restrictions
imposed by the Committee upon Restricted Stock are not satisfied at the end of
the Restriction Period, any Restricted Stock remaining subject to such
restrictions shall thereupon be forfeited by the Grantee and reacquired by the
Company.
(c) Removal of Restrictions. The Committee shall have the authority to
remove any or all of the restrictions on the Restricted Stock, including the
restrictions under the Restriction Period, whenever it may determine that such
action is appropriate by reason of changes in applicable laws or other changes
in circumstances resulting from disability, death, Change in Control or other
unusual circumstances arising after the date of the Restricted Stock Award.
3.3 Restriction Period
The Restriction Period of Restricted Stock shall commence on the date
of grant and shall be established by the Committee in the Incentive Award
Agreement setting forth the terms of the award of Restricted Stock. The
Restriction Period shall be at least three years; provided, however, that such
Restriction Period may be as short as one year if the restrictions under the
Restriction Period relate to specific financial or non-financial performance
measures and objectives established by the Committee.
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3.4 Delivery of Shares of Common Stock
Subject to Section 6.3, at the expiration of the Restriction Period, a
stock certificate evidencing the Restricted Stock (to the nearest full share)
with respect to which the Restriction Period has expired with all restrictions
thereon having been satisfied shall be delivered without charge to the Grantee,
or his personal representative, free of all restrictions under the Plan.
3.5 Supplemental Payment on Vesting of Restricted Stock
The Committee, either at the time of grant or at the time of vesting of
Restricted Stock, may provide for a Supplemental Payment by the Company to the
holder in an amount specified by the Committee, which shall not exceed the
amount necessary to pay the federal income tax payable with respect to both the
vesting of the Restricted Stock and receipt of the Supplemental Payment,
assuming the Grantee is taxed at the maximum effective federal income tax rate
applicable thereto. The Supplemental Payment shall be paid within 30 calendar
days of each date that Restricted Stock vests. The Committee shall have the
discretion to grant Supplemental Payments that are payable solely in cash or
Supplemental Payments that are payable in cash, Common Stock, or a combination
of both, as determined by the Committee at the time of payment.
SECTION 4. PERFORMANCE UNITS AND PERFORMANCE SHARES
4.1 Performance Based Awards
(a) Grant. The Committee is authorized to grant Performance Units and
Performance Shares to Grantees. The Committee may make grants of Performance
Units or Performance Shares in such a manner that more than one Performance
Period is in progress concurrently. For each Performance Period, the Committee
shall establish the number of Performance Units or Performance Shares and the
contingent value of any Performance Units or Performance Shares, which may vary
depending on the degree to which performance objectives established by the
Committee are met.
(b) Performance Criteria. At the beginning of each Performance Period,
the Committee shall (i) establish for such Performance Period specific financial
or nonfinancial performance measures or objectives as the Committee believes are
relevant to the Company's overall business objectives; (ii) determine the value
of a Performance Unit or the number of shares under a Performance Share grant
relative to performance objectives; and (iii) notify each Grantee in writing of
the established performance objectives and minimum, target, and maximum
Performance Unit or Share value for such Performance Period.
(c) Modification. If the Committee determines in its sole discretion
that the established performance measures or objectives are no longer suitable
to Company objectives because of a change in the Company's business operations,
corporate structure, capital structure, or other conditions the Committee deems
to be appropriate, the Committee may modify the performance measures and
objectives as considered appropriate.
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(d) Payment. The basis for payment of Performance Units or Performance
Shares for a given Performance Period shall be the achievement of those
financial and nonfinancial performance objectives determined by the Committee at
the beginning of the Performance Period. If minimum performance is not achieved
for a Performance Period, no payment shall be made and all contingent rights
shall cease. If minimum performance is achieved or exceeded, the value of a
Performance Unit or Performance Share shall be based on the degree to which
actual performance exceeded the pre-established minimum performance standards,
as determined by the Committee. The amount of payment shall be determined by
multiplying the number of Performance Units or Performance Shares granted at the
beginning of the Performance Period times the final Performance Unit or
Performance Share value. Payments shall be made, in the discretion of the
Committee, solely in cash or Common Stock, or a combination of cash and Common
Stock, following the close of the applicable Performance Period.
4.2 Supplemental Payment on Vesting of Performance Units or Performance
Shares
The Committee, either at the time of grant or at the time of vesting of
Performance Units or Performance Shares (other than Restricted Stock), may
provide for a Supplemental Payment by the Company to the holder in an amount
specified by the Committee, which shall not exceed the amount necessary to pay
the federal income tax payable with respect to both the vesting of such
Performance Units or Performance Shares and receipt of the Supplemental Payment,
assuming the Grantee is taxed at the maximum effective federal income tax rate
applicable thereto. The Supplemental Payment shall be paid within 30 days of
each date that such Performance Units or Performance Shares vest. The Committee
shall have the discretion to grant Supplemental Payments that are payable in
cash, Common Stock, or a combination of both, as determined by the Committee at
the time of payment.
SECTION 5. PROVISIONS RELATING TO PLAN PARTICIPATION
5.1 Plan Conditions
(a) Incentive Award Agreement. Each Grantee to whom an Incentive Award
is granted under the Plan shall be required to enter into an Incentive Award
Agreement with the Company in a form provided by the Committee, which shall
contain certain specific terms, as determined by the Committee, with respect to
the Incentive Award and shall include provisions that the Grantee (i) shall not
disclose any trade or secret data or any other confidential information of the
Company acquired during employment by the Company or a Subsidiary, or after the
termination of employment or Retirement, (ii) shall abide by all the terms and
conditions of the Plan and such other terms and conditions as may be imposed by
the Committee, and (iii) shall not interfere with the employment of any other
Company employee. An Incentive Award may include a noncompetition agreement with
respect to the Grantee and/or such other terms and conditions, including,
without limitation, rights of repurchase or first refusal, not inconsistent with
the Plan, as shall be determined from time to time by the Committee.
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(b) No Right to Employment. Nothing in the Plan, Incentive Award
Agreement or any instrument executed pursuant to the Plan shall create any
employment rights (including without limitation, rights to continued employment)
in any Grantee or affect the right of the Company to terminate the employment of
any Grantee at any time for any reason, whether before the exercise date of any
Option or during the Restriction Period of any Restricted Stock or during the
Performance Period of any Performance Unit or Performance Share.
(c) Securities Requirements. No shares of Common Stock will be issued
or transferred pursuant to an Incentive Award unless and until all
then-applicable requirements imposed by federal and state securities and other
laws, rules and regulations and by any regulatory agencies having jurisdiction
and by any stock market or exchange upon which the Common Stock may be listed
have been fully met. As a condition precedent to the issuance of shares pursuant
to the grant or exercise of an Incentive Award, the Company may require the
Grantee to take any reasonable action to meet such requirements. The Company
shall not be obligated to take any affirmative action in order to cause the
issuance or transfer of shares pursuant to an Incentive Award to comply with any
law or regulation described in the second preceding sentence.
5.2 Transferability
(a) Non-Transferable Award. Unless otherwise provided in an Incentive
Award Agreement, no Incentive Award and no right under the Plan, contingent or
otherwise, other than Restricted Stock as to which restrictions have lapsed,
shall be (i) assignable, saleable, or otherwise transferable by a Grantee except
by will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order, or (ii) subject to any encumbrance, pledge or charge
of any nature. No transfer by will or by the laws of descent and distribution
shall be effective to bind the Company unless the Committee shall have been
furnished with a copy of the deceased Grantee's will or such other evidence as
the Committee may deem necessary to establish the validity of the transfer. Any
attempted transfer in violation of this Section 5.2 shall be void and
ineffective for all purposes.
(b) Ability to Exercise Rights. Only the Grantee or his guardian (if
the Grantee becomes Disabled), or in the event of his death, his legal
representative or beneficiary, may exercise Options, receive cash payments and
deliveries of shares, or otherwise exercise rights under the Plan. The executor
or administrator of the Grantee's estate, or the person or persons to whom the
Grantee's rights under any Incentive Award will pass by will or the laws of
descent and distribution, shall be deemed to be the Grantee's beneficiary or
beneficiaries of the rights of the Grantee hereunder and shall be entitled to
exercise such rights as are provided hereunder.
5.3 Rights as a Stockholder
Except as otherwise provided in any Incentive Award Agreement, a
Grantee of an Incentive Award or a transferee of such Grantee shall have no
rights as a stockholder with respect to any shares of Common Stock until such
person becomes a holder of record of such Common Stock. Except as otherwise
provided in Section 5.5, no adjustment shall be made for dividends (ordinary or
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extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued.
5.4 Listing and Registration of Shares of Common Stock
Prior to issuance and/or delivery of shares of Common Stock, the
Company shall consult with representatives of the Company, as appropriate,
regarding compliance with laws, rules and regulations that apply to such shares.
If necessary, the Company shall postpone the issuance and/or delivery of the
affected shares of Common Stock upon any exercise of an Incentive Award until
completion of such stock exchange listing, registration, or other qualification
of such shares under any state and/or federal law, rule or regulation as the
Company may consider appropriate, and may require any Grantee to make such
representations and furnish such information as it may consider appropriate in
connection with the issuance or delivery of the shares in compliance with
applicable laws, rules and regulations. The Company shall not be obligated to
take any affirmative action in order to cause the issuance or transfer of shares
pursuant to an Incentive Award to comply with any law, rule or regulation
described in the immediately preceding sentence.
5.5 Change in Stock and Adjustments
(a) Changes in Capitalization. In the event the outstanding shares of
the Common Stock, as constituted from time to time, shall be changed as a result
of a change in capitalization of FIRSTPLUS or a combination, merger or
reorganization of FIRSTPLUS into or with any other corporation or any other
transaction with similar effects, then, for all purposes, references herein to
Common Stock or Restricted Stock shall mean and include all securities or other
property (other than cash) that holders of Common Stock are entitled to receive
in respect of Common Stock by reason of each successive aforementioned event,
which securities or other property (other than cash) shall be treated in the
same manner and shall be subject to the same restrictions as the underlying
Common Stock or Restricted Stock.
(b) Changes in Law or Circumstances. In the event of any change in
applicable laws or any change in circumstances that results in or would result
in any dilution of the rights granted under the Plan, or that otherwise warrants
equitable adjustment because it interferes with the intended operation of the
Plan, then if the Committee shall, in its sole discretion, determine that such
change equitably requires an adjustment in the number or kind of shares of stock
or other securities or property theretofore subject, or which may become
subject, to issuance or transfer under the Plan or in the terms and conditions
of outstanding Incentive Awards, such adjustment shall be made in accordance
with such determination. Such adjustments may include without limitation changes
with respect to (i) the aggregate number of shares that may be issued under the
Plan, (ii) the number of shares subject to Incentive Awards and (iii) the price
per share for outstanding Incentive Awards. The Committee shall give notice to
each Grantee, and upon notice such adjustment shall be effective and binding for
all purposes of the Plan.
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5.6 Termination of Employment, Death, Disability and Retirement
(a) Termination of Employment. Subject to Section 3.2, if an Employee's
employment by the Company and any parent or Subsidiary is terminated for any
reason whatsoever other than death, Disability, Retirement, Involuntary
Termination or Termination for Good Reason, any Incentive Award granted pursuant
to the Plan outstanding at the time and all rights thereunder shall wholly and
completely terminate, and unless otherwise established by the Committee, no
further vesting shall occur and the Employee shall be entitled to exercise his
or her rights with respect to the portion of the Incentive Award vested as of
the date of termination for a period of thirty (30) calendar days after such
termination date; provided, however, that if an Employee is Terminated for
Cause, such Employee's right to exercise the vested portion of his or her
Incentive Award shall terminate as of the date of termination of employment. In
the event of termination for death, Disability, Retirement, or Change in
Control, an Incentive Award may be exercised only as determined by the Committee
and provided in the Incentive Award Agreement. However, the following shall be
used as a general guideline.
(b) Retirement. Subject to Section 3.2, unless otherwise approved by
the Committee, upon the Retirement of an Employee:
(i) any nonvested portion of any outstanding Incentive Award
shall continue to vest after Retirement; and
(ii) any vested Incentive Award shall expire on the earlier of
(A) the expiration date set forth in the Incentive Award Agreement with respect
to such Incentive Awards; or (B) the expiration of six (6) months after the date
of Retirement.
(c) Disability or Death. Subject to Section 3.2, unless otherwise
approved by the Committee, upon termination of employment from the Company and
any parent or Subsidiary as a result of Disability or death:
(i) any nonvested portion of any outstanding Incentive Award
shall continue to vest after Disability or death; and
(ii) any vested Incentive Award shall expire upon the earlier
of (A) the expiration date set forth in the Incentive Award Agreement with
respect to such Incentive Awards or (B) the first anniversary of such
termination of such employment as a result of Disability or death.
(d) Involuntary Termination. Subject to Section 3.2, unless otherwise
approved by the Committee, upon termination of employment from the Company and
any parent or Subsidiary as a result of Involuntary Termination:
(i) any nonvested portion of any outstanding Incentive Award
shall vest on a prorated basis based upon the number of months the terminated
Employee has been employed within the applicable Performance Period or term; and
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(ii) any vested Incentive Award shall expire upon the earlier
of (A) the expiration date set forth in the Incentive Award Agreement with
respect to such Incentive Awards or (B) the expiration of thirty (30) days after
the date of termination.
(e) Continuation. Subject to the express provisions of the Plan and the
terms of any applicable Incentive Award Agreement, the Committee, in its
discretion, may provide for the continuation of any Incentive Award for such
period and upon such terms and conditions as are determined by the Committee in
the event that a Grantee ceases to be an employee.
5.7 Changes in Control
(a) On the date thirty (30) days prior to any occurrence described in
Section 5.7(a)(i), (ii) or (iii) (each occurrence a "Change in Control"), but
only where such anticipated occurrence actually takes place, notwithstanding the
vesting schedule in an Incentive Award, each Option shall immediately become
exercisable in full, all restrictions and conditions of all Restricted Stock
then outstanding shall be deemed satisfied, and all Performance Shares and
Performance Units shall become vested, deemed earned in full and promptly paid
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; or
(iii) is a sale, lease, exchange or other disposition of all
or substantially all of the property and assets of the Company;
provided, however, that no Change in Control shall be deemed to have occurred
if, prior to such time as a Change in Control would otherwise be deemed to have
occurred, the Board determines otherwise.
(b) Right of Cash-Out. If approved by the Board prior to or within
thirty (30) days after such time as a Change in Control shall be deemed to have
occurred, the Board shall have the right for a forty-five (45) day period from
and after the date that the Change in Control is deemed to have occurred to
require all, but not less than all, Grantees to transfer and deliver to the
Company for cancellation all Incentive Awards previously granted to Grantees in
exchange for an amount equal to the "spread value" (defined below) of the
Incentive Awards. Such right shall be exercised by written notice to all
Grantees. For purposes of this Section 5.7(b), the spread value of an Incentive
Award shall equal the sum of (i) all cash to which the Grantee would be entitled
upon settlement or exercise of such Incentive Award and (ii) the excess of the
"market value" (defined below) per share over the option price, if any,
multiplied by the number of shares subject to such Incentive Award.
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For purposes of the preceding sentence, "market value" per share shall mean the
higher of (i) the average of the Fair Market Value per share on each of the five
trading days immediately following the date a Change in Control is deemed to
have occurred or (ii) the highest price or the fair market value of the
equivalent consideration, if any, offered in connection with the Change in
Control. The amount payable to each Grantee by the Company (or the acquiror, as
the case may be) pursuant to this Section 5.7(b) shall be (x) in cash or by
certified check or (y) in the form of the consideration offered in connection
with the Change in Control, and in each case shall be reduced by any applicable
taxes required to be withheld.
5.8 Amendments to Incentive Awards
Subject to Section 5.9, the Committee may waive any conditions or
rights with respect to, or amend, alter, suspend, discontinue, or terminate, any
unexercised Incentive Award theretofore granted, prospectively or retroactively,
with the consent of any relevant Grantee.
5.9 Exchange of Incentive Awards; Repricing
(a) Provided the Committee is comprised entirely of nonemployee
directors, the Committee may, to fulfill a legitimate corporate purpose (such as
retention of key employees), permit Grantees under the Plan to surrender
outstanding Incentive Awards in order to exercise or realize the rights under
other Incentive Awards or in exchange for the grant of new Incentive Awards or
require holders of Incentive Awards to surrender outstanding Incentive Awards as
a condition precedent to the grant of new Incentive Awards.
(b) Any surrender or exchange of Incentive Awards for the grant of new
Incentive Awards at an exercise price below the exercise price of the
surrendered or exchanged Incentive Awards shall be limited to 10% of the
aggregate number of shares of Common Stock authorized for grant as Incentive
Awards under the Plan and shall be used only to maintain option value in extreme
circumstances that are beyond management's control.
5.10 Financing
The Company may extend and maintain, or arrange for the extension and
maintenance of, financing to any Grantee (including a Grantee who is a Director
of the Company) to purchase shares pursuant to exercise of an Incentive Award on
such terms as may be approved by the Committee in its sole discretion. In
considering the terms for extension or maintenance of credit by the Company, the
Committee shall, among other factors, consider the cost to the Company of any
financing extended by the Company.
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SECTION 6. MISCELLANEOUS
6.1 Effective Date and Grant Period
This Plan shall become effective as of the date of Board approval (the
"Effective Date"). Unless sooner terminated by the Board, the Plan shall
terminate on December 31, 2008, unless extended. After the termination of the
Plan, no Incentive Awards may be granted under the Plan, but previously granted
awards shall remain outstanding in accordance with their applicable terms and
conditions.
6.2 Funding
Except as provided under Section 3, no provision of the Plan shall
require the Company, for the purpose of satisfying any obligations under the
Plan, to purchase assets or place any assets in a trust or other entity to which
contributions are made or otherwise to segregate any assets in a manner that
would provide any Grantee any rights that are greater than those of a general
creditor of the Company, nor shall the Company maintain separate bank accounts,
books, records or other evidence of the existence of a segregated or separately
maintained or administered fund if such action would provide any Grantee with
any rights that are greater than those of a general creditor of the Company.
Grantees shall have no rights under the Plan other than as unsecured general
creditors of the Company except that insofar as they may have become entitled to
payment of additional compensation by performance of services, they shall have
the same rights as other employees under applicable law. However, the Company
may establish a "Rabbi Trust" for purposes of securing the payment pursuant to a
Change in Control.
6.3 Withholding Taxes
The Company shall have the right to (i) make deductions from any
settlement of an Incentive Award made under the Plan, including the delivery of
shares, or require shares or cash or both be withheld from any Incentive Award,
in each case in an amount sufficient to satisfy withholding of any federal,
state or local taxes required by law, or (ii) take such other action as may be
necessary or appropriate to satisfy any such withholding obligations. The
Committee may determine the manner in which such tax withholding may be
satisfied, and may permit shares of Common Stock (rounded up to the next whole
number) to be used to satisfy required tax withholding based on the Fair Market
Value of any such shares of Common Stock as of the delivery of shares or payment
of cash in satisfaction of the applicable Incentive Award.
6.4 Conflicts with Plan
In the event of any inconsistency or conflict between the terms of the
Plan and an Incentive Award Agreement, the terms of the Plan shall govern.
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6.5 No Guarantee of Tax Consequences
Neither the Company nor the Committee makes any commitment or guarantee
that any federal, state or local tax treatment will apply or be available to any
person participating or eligible to participate hereunder.
6.6 Severability
In the event that any provision of this Plan shall be held illegal,
invalid or unenforceable for any reason, such provision shall be fully
severable, but shall not affect the remaining provision of the Plan, and the
Plan shall be construed and enforced as if the illegal, invalid, or
unenforceable provision had never been included herein.
6.7 Gender, Tense and Headings
Whenever the context requires such, words of the masculine gender used
herein shall include the feminine and neuter, and words used in the singular
shall include the plural. Section headings as used herein are inserted solely
for convenience and reference and constitute no part of the Plan.
6.8 Amendment and Termination
The Plan may be amended or terminated at any time by the Board by the
affirmative vote of a majority of the members in office. The Plan, however,
shall not be amended without prior written consent of each affected Grantee if
such amendment or termination of the Plan would adversely affect any material
vested benefits or rights of such person.
6.9 Section 280G Payments
In the event that the aggregate present value of the payments to a
Grantee under the Plan, and any other plan, program, or arrangement maintained
by the Company, constitutes an "excess parachute payment" (within the meaning of
Section 280G(b)(1) of the Code) and the excise tax on such payment would cause
the net parachute payments (after taking into account federal, state and local
income and excise taxes) to which the Grantee otherwise would be entitled to be
less than what the Grantee would have netted (after taking into account federal,
state and local income taxes) had the present value of his total parachute
payments equaled $1.00 less than three times his "base amount" (within the
meaning of Code Section 280G(b)(3)(A)), the Grantee's total "parachute payments"
(within the meaning of Code Section 280G(b)(2)(A)) shall be reduced (by the
minimum possible amount) so that their aggregate present value equals $1.00 less
than three times such base amount. For purposes of this calculation, it shall be
assumed that the Grantee's tax rate will be the maximum marginal federal, state
and local income tax rate on earned income, with such maximum federal rate to be
computed with regard to Code Section 1(g), if applicable. In the event that the
Grantee and the Company are unable to agree as to the amount of the reduction
described above, if any, the Grantee shall select a law firm or accounting firm
from among those regularly consulted (during the twelve-month period immediately
prior to the change in control that resulted in the characterization of the
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payments as parachute payments) by the Company regarding federal income tax or
employee benefit matters and such law firm or accounting firm shall determine
the amount of such reduction and such determination shall be final and binding
upon the Grantee and the Company.
6.10 Governing Law
The Plan shall be construed in accordance with the laws of the State of
Texas, except as superseded by federal law, and in accordance with applicable
provisions of the Code and regulations or other authority issued thereunder by
the appropriate governmental authority.
IN WITNESS WHEREOF, this Amended and Restated FIRSTPLUS Financial
Group, Inc. 1998 Long Term Incentive Plan has been executed this 19th day of
June, 1998.
FIRSTPLUS FINANCIAL GROUP, INC.
By:
-------------------------
Print Name:
--------------------
Title:
-------------------------
19
August 21, 1998
FIRSTPLUS Financial Group, Inc.
1600 Viceroy Drive
Dallas, Texas 75235
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to FIRSTPLUS Financial Group, Inc., a Nevada
corporation (the "Corporation"), 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 August 21, 1998, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 2,710,500
shares of the $.01 par value common stock (the "Common Stock") of the
Corporation that may be offered through the Amended and Restated FIRSTPLUS
Financial Group, Inc. 1998 Long- Term Incentive Plan (the "Plan"), restricted
stock grants to Jack Roubinek (the "Grants"), and individual stock option
agreements listed on the cover page of the Registration Statement (the "Option
Agreements").
You have requested the opinion of this firm 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 Articles of Incorporation and the Bylaws of the Corporation, as
amended; (2) minutes and records of the corporate proceedings of the Corporation
with respect to the establishment of the Plan, the reservation of 2,710,500
shares of Common Stock to be issued under the Plan, the Grants and the Option
Agreements, and to which the Registration Statement relates, the issuance of
shares of Common Stock pursuant to the Plan, the Grants and the Option
Agreements, and related matters; (3) the Registration Statement and exhibits
thereto, including the Plan, the Grants and the Option Agreements; and (4) such
other documents and instruments as we have deemed necessary for the expression
of the 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 Certificate of Incorporation, the Bylaws, minutes, records, resolutions and
other documents or writings of the Corporation, we have relied, to the extent we
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Corporation and upon documents, records and
<PAGE>
instruments furnished to us by the Corporation, without independent check or
verification of their accuracy.
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, and assuming that: (i) shares to be
sold in the future through the Plan, the Grants and the Option Agreements are
all in accordance with the terms of the Plan, the Grants and the Option
Agreements, (ii) the shares of Common Stock to be issued in the future are duly
issued in accordance with the terms of the Plan, the Grants and the Option
Agreements, (iii) the Corporation maintains an adequate number of authorized but
unissued shares and/or treasury shares of Common Stock available for issuance to
those persons who purchase shares through the Plan, the Grants and the Option
Agreements, and (iv) the consideration for shares of Common Stock issued
pursuant to the Plan, the Grants and the Option Agreements is actually received
by the Corporation as provided in the Plan, the Grants and the Option Agreements
and exceeds the par value of such shares, then we are of the opinion that the
shares of Common Stock issued in accordance with the terms of the Plan, the
Grants and the Option Agreements, or sold through and in accordance with the
terms of the Plan, the Grants and the Option Agreements, will be duly and
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm 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
Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8 to be filed on or about August 21, 1998)
pertaining to the following stock option agreements of FIRSTPLUS Financial
Group, Inc.:
Amended and Restated FIRSTPLUS Financial Group, Inc.
1998 Long-Term Incentive Plan
Restricted Stock Grants to Jack Roubinek
Stock Option Agreement for Veretta Anderson
Stock Option Agreement for Rich Bailey
Stock Option Agreement for William P. Benac
Stock Option Agreement for Mark Blinn
Stock Option Agreement for Ron Conner
Stock Option Agreement for Charles Coons
Stock Option Agreement for Michael Dillman
Stock Option Agreement for William G. Eisenhauer
Stock Option Agreement for Kevin Gates
Stock Option Agreement for Linda L. Glidewell
Stock Option Agreement for John Griggs
Stock Option Agreement for Brent Hansen
Stock Option Agreement for John R. Hauge
Stock Option Agreement for William Homer
Stock Option Agreement for Stephen Ingram
Stock Option Agreement for Jeff Johnson
Stock Option Agreement for William G. Joiner
Stock Option Agreement for David Jones
Stock Option Agreement for Simone Lagomarsino
Stock Option Agreement for Scott Mackay
Stock Option Agreement for Valerie Martin
Stock Option Agreement for Robert Mirto
Stock Option Agreement for Richard W. Nelson
Stock Option Agreement for James M. O'Reilly
Stock Option Agreement for Kim Phillips
Stock Option Agreement for Terrie Reedy
Stock Option Agreement for Jeanne G. Selzer
Stock Option Agreement for Valerie R. Silvey
Stock Option Agreement for Craig L. Smith
Stock Option Agreement for Jon W. Stewart
Stock Option Agreement for Douglas P. Swindall
Stock Option Agreement for Lon Tibbatts
Stock Option Agreement for Kenneth P. Weatherwax
of our report dated October 30, 1997, with 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
Dallas, Texas
August 19, 1998
