<PAGE>
As filed with the Securities and Exchange Commission on August 29, 1996
Registration No. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SOUTHERN PACIFIC FUNDING CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
California 6199 33-0636924
(State of Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
One Centerpointe Drive, Suite 500
Lake Oswego, Oregon 97035
(Address of Principal Executive Offices)
1995 STOCK OPTION, DEFERRED STOCK AND RESTRICTED STOCK PLAN
(Full Title of the Plan)
Robert W. Howard
President
Southern Pacific Funding Corporation
One Centerpointe Drive, Suite 500
Lake Oswego, Oregon 97035
(503) 684-4700
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Thomas J. Poletti, Esq.
Susan B. Kalman, Esq.
Freshman, Marantz, Orlanski, Cooper & Klein
9100 Wilshire Boulevard, 8-East
Telephone (310) 273-1870, Telecopy: (310) 274-8357
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ X ]
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Amount to be Price per Offering Registration
Title of Securities to be Registered Registered Share(1) Price(1) Fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 230,000 shares $17.00 $ 3,910,000 $1,348.28
- -------------------------------------------------------------------------------------------------------
Common Stock, no par value 354,000 shares $17.13 $ 6,064,020 2,091.04
- -------------------------------------------------------------------------------------------------------
Common Stock, no par value 710,800 shares $24.44(2) $17,371,952(2) 5,990.33
- -------------------------------------------------------------------------------------------------------
Total $9,429.65
=======================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h)(1).
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in this Part I are
being separately provided to the Registrant's employees, officers,
directors and consultants as specified by Rule 428(b)(1).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in paragraphs (a) through (c) below are hereby
incorporated by reference in this Registration Statement. All documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
herein have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereto from the date of filing of such documents.
(a) The Registrant's latest prospectus filed pursuant to Rule 424(b)
of the Securities Act of 1933, as amended.
(b) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered
by the above-referenced prospectus.
(c) The section of the Registrant's Registration Statement on Form S-
1, filed with the Commission on May 5, 1996, entitled "Description of
Securities", as amended by Amendment Nos. 1 and 2, filed with the
Commission on May 20, 1996 and June 7, 1996, respectively.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 317 of the California General Corporation Law (the "CGCL"),
the Registrant is in certain circumstances permitted to indemnify its directors
and officers against certain expenses (including attorneys' fees), judgements,
fines, settlements and other amounts actually and reasonably incurred in
connection with threatened, pending or completed civil, criminal, administrative
or investigative actions, suits or proceedings (other than an action by or in
the right of the Registrant), in which such persons were or are parties, or are
threatened to be made parties, by reason of the fact that they were or are
directors or officers of the Registrant, if such persons acted in good faith and
in a manner they reasonably believed to be in the best interests of the
Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. In addition, the
Registrant is in certain circumstances permitted to indemnify its directors and
officers against certain expenses incurred in connection with the defense or
settlement of a threatened, pending or completed action by or in the right of
the Registrant, and against amounts paid in settlement of any such action, if
such persons acted in good faith and in a manner they believed to be in the best
interests of the Registrant and its shareholders provided that the specified
court approval is obtained.
As permitted by Section 317 of the CGCL, the Articles of Incorporation and
By-Laws of the Registrant provide that the Registrant is authorized to provide
indemnification for its directors and officers
II-1
<PAGE>
for breach of their duty to the Registrant and its shareholders through bylaw
provisions or through agreements with the directors and officers, or both, in
excess of the indemnification otherwise permitted by Section 317 of the CGCL.
The Registrant's By-laws provide for indemnification of its directors and
officers to the maximum extent permitted by Section 317 of the CGCL. In
addition, agreements entered into by the Registrant with its directors and its
executive officers require the Registrant to indemnify such persons against
expenses, judgments, fines settlements and other amounts reasonably incurred in
connection with any proceeding to which any such person may be made a party by
reason of the fact that such person was an agent of the Registrant (including
judgments, fines and settlements in or of a derivative action, unless
indemnification is otherwise prohibited by law), provided such person acted in
good faith and in a manner he reasonably believed to be in the best interests of
the Registrant and, in the case of a criminal proceeding, had no reason to
believe his conduct was unlawful. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
The Articles of Incorporation of the Registrant provide that the personal
liability of the directors of the Registrant for monetary damages shall be
eliminated to the fullest extent permissible under California law. Under Section
204(a)(10) of the CGCL, the personal liability of a director for monetary
damages in an action brought by or in the right of the corporation for breach of
the director's duty to the corporation may be eliminated, except for the
liability of a director resulting from (i) acts or omissions involving
intentional misconduct or the absence of good faith, (ii) any transaction from
which a director derived an improper personal benefit, (iii) acts or omissions
showing a reckless disregard for the director's duty, (iv) acts or omissions
constituting an unexcused pattern of inattention to the director's duty or (v)
the making of an illegal distribution to shareholders or an illegal loan or
guaranty.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Numbers
-------
4.1 Form of 1995 Stock Option, Deferred Stock and Restricted Stock
Plan incorporated by reference (and filed as Exhibit 10.1) to
the Registrant's Registration Statement on Form S-1 (File No.
333-3270) and Amendment Nos. 1 and 2 filed with the Securities
and Exchange Commission on May 5, 1996 and June 7, 1996,
respectively).
4.2 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and H. Wayne Snavely.
4.3 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and Gary A. Palmer.
4.4 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and Stephen J. Shugerman.
4.5 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and Thomas Bowser.
II-2
<PAGE>
4.6 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and John D. Dewey.
4.7 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and A. Van Ruiter.
4.8 Form of Stock Option Agreement effective as of June 13, 1996 by
and between Registrant and Frank P. Willey.
5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein.
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included
in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on signature page of Registration
Statement).
Item 9. Undertakings.
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.
(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.
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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
---------
Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the provisions referenced
in Item 6 of this Registration Statement or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
II-3
<PAGE>
securities being registered hereunder, 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
whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of
such issue.
II-4
<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 of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, "hereunto duly
authorized, in the City of Lake Oswego, State of Oregon, on this 29th day of
August, 1996.
SOUTHERN PACIFIC FUNDING
CORPORATION
By: /s/ Robert W. Howard
----------------------------
ROBERT W. HOWARD
President
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert W. Howard, Bernard A. Guy and Gary
A. Palmer, and each of them, as his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments (including posteffective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any one of them, or his, her or their
substitutes, may lawfully do or cause to 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 indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ H. Wayne Snavely
- ------------------------ Chairman of the Board August 29, 1996
H. WAYNE SNAVELY
/s/ Robert W. Howard
- ------------------------ President and Director August 29, 1996
ROBERT W. HOWARD (Principal Executive
Officer)
- ------------------------ Executive Vice President
BERNARD A. GUY and Director August __, 1996
/s/ Gary A. Palmer
- ------------------------ Chief Financial Officer August 29, 1996
GARY A. PALMER (Principal Financial and
Accounting Officer)
/s/ Stephen J. Shugerman
- ------------------------ Director August 29, 1996
STEPHEN J. SHUGERMAN
/s/ John D. Dewey
- ------------------------ Director August 29, 1996
JOHN D. DEWEY
/s/ A. Van Ruiter
- ------------------------ Director August 29, 1996
A. VAN RUITER
/s/ Frank P. Willey
- ------------------------ Director August 29, 1996
FRANK P. WILLEY
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
- --------------- Director August __, 1996
FRANK P. WILLEY
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Numbers Description Page
- ------- ----------- ----
<S> <C> <C>
4.1 Form of 1995 Stock Option, Deferred Stock and Restricted Stock Plan
incorporated by reference (and filed as Exhibit 10.1) to the
Registrant's Registration Statement on Form S-1 (File No. 333-3270)
and Amendment Nos. 1 and 2 filed with the Securities and Exchange
Commission on May 5, 1996 and June 7, 1996, respectively).
4.2 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and H. Wayne Snavely.
4.3 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and Gary A. Palmer.
4.4 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and Stephen J. Shugerman.
4.5 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and Thomas Bowser.
4.6 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and John D. Dewey.
4.7 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and A. Van Ruiter.
4.8 Form of Stock Option Agreement effective as of June 13, 1996 by and
between Registrant and Frank P. Willey.
5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein.
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included in
Exhibit 5). 1
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on signature page of Registration
Statement).
</TABLE>
II-7
<PAGE>
EXHIBIT 4.2
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and H. Wayne Snavely (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 100,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- -------------------
First Last
------- ---------
<S> <C> <C> <C>
B 100,000 6/13/97 6/13/2007
- ------- ------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
2
<PAGE>
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a
3
<PAGE>
transaction to which Section 425(a) of the Internal Revenue Code
applies, except where the termination of employment is by means of the
employee's disability, in which case said 3 month period may be
extended to 1 year, as provided under Internal Revenue Code Section
422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
4
<PAGE>
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This limitation shall not apply to any option granted as a Non-
Qualified Stock Option.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ _________________________
Name:
Title: _________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
6
<PAGE>
EXHIBIT 4.3
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and Gary A. Palmer (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 25,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- ---------------------
First Last
--------- ---------
<S> <C> <C> <C>
A 5,000 6/13/97 6/13/2002
- ----- --------- ---------
A 5,000 6/13/98 6/13/2002
- ----- --------- ---------
A 5,000 6/13/99 6/13/2002
- ----- --------- ---------
A 5,000 6/13/2000 6/13/2002
- ----- --------- ---------
A 5,000 6/13/2001 6/13/2002
- ----- --------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
2
<PAGE>
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him, and
3
<PAGE>
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a transaction to
which Section 425(a) of the Internal Revenue Code applies, except
where the termination of employment is by means of the employee's
disability, in which case said 3 month period may be extended to 1
year, as provided under Internal Revenue Code Section 422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the
4
<PAGE>
Option(s) or the issuance of stock pursuant to the exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such
5
<PAGE>
Option shall be considered granted as a Non-Qualified Stock Option to the
extent, but only to the extent of such excess. This limitation shall not apply
to any option granted as a Non-Qualified Stock Option.
6
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ _________________________
Name:
Title: _________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
7
<PAGE>
EXHIBIT 4.4
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and Stephen J. Shugerman (the
"Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 50,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- -------------------
First Last
------- ---------
<S> <C> <C> <C>
B 50,000 6/13/97 6/13/2007
- ------ ------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
2
<PAGE>
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a
3
<PAGE>
transaction to which Section 425(a) of the Internal Revenue Code
applies, except where the termination of employment is by means of the
employee's disability, in which case said 3 month period may be
extended to 1 year, as provided under Internal Revenue Code Section
422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
4
<PAGE>
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This limitation shall not apply to any option granted as a Non-
Qualified Stock Option.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ __________________________
Name:
Title: __________________________
Street Address
__________________________
City and State
__________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
6
<PAGE>
EXHIBIT 4.5
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and Thomas Bowser (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 25,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- ---------------------
First Last
--------- ---------
<S> <C> <C> <C>
A 5,000 6/13/97 6/13/2002
- ----- --------- ---------
A 5,000 6/13/98 6/13/2002
- ----- --------- ---------
A 5,000 6/13/99 6/13/2002
- ----- --------- ---------
A 5,000 6/13/2000 6/13/2002
- ----- --------- ---------
A 5,000 6/13/2001 6/13/2002
- ----- --------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased
when written notice of such exercise has been given to the Company at its
principal business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference
--------------
the Plan and all of the terms and conditions of the Plan as heretofore amended
and as the same may be amended from time to time hereafter in accordance with
the terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
2
<PAGE>
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him, and
3
<PAGE>
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a transaction to
which Section 425(a) of the Internal Revenue Code applies, except
where the termination of employment is by means of the employee's
disability, in which case said 3 month period may be extended to 1
year, as provided under Internal Revenue Code Section 422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the
4
<PAGE>
Option(s) or the issuance of stock pursuant to the exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such
5
<PAGE>
Option shall be considered granted as a Non-Qualified Stock Option to the
extent, but only to the extent of such excess. This limitation shall not apply
to any option granted as a Non-Qualified Stock Option.
6
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ _________________________
Name:
Title: _________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
7
<PAGE>
EXHIBIT 4.6
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and John D. Dewey (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 10,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- -------------------
First Last
------- ---------
<S> <C> <C> <C>
B 10,000 6/13/97 6/13/2007
- ------ ------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
2
<PAGE>
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an Optioned
--------------------------
Share may be made by Optionee within two (2) years from the date of
the granting of the Option(s) nor within one (1) year after the
transfer of such Optioned Share to him, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a
3
<PAGE>
transaction to which Section 425(a) of the Internal Revenue Code
applies, except where the termination of employment is by means of the
employee's disability, in which case said 3 month period may be
extended to 1 year, as provided under Internal Revenue Code Section
422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
4
<PAGE>
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This limitation shall not apply to any option granted as a Non-
Qualified Stock Option.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ _________________________
Name:
Title: _________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
6
<PAGE>
EXHIBIT 4.7
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and A. Van Ruiter (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 10,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- -------------------
First Last
------- ---------
<S> <C> <C> <C>
B 10,000 6/13/97 6/13/2007
- ------ ------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
2
<PAGE>
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a
3
<PAGE>
transaction to which Section 425(a) of the Internal Revenue Code
applies, except where the termination of employment is by means of the
employee's disability, in which case said 3 month period may be
extended to 1 year, as provided under Internal Revenue Code Section
422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
4
<PAGE>
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This limitation shall not apply to any option granted as a Non-
Qualified Stock Option.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ _________________________
Name:
Title: _________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
6
<PAGE>
EXHIBIT 4.8
SOUTHERN PACIFIC FUNDING CORPORATION
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 13th day of June 1996, (the
"Option Grant Date"), by and between Southern Pacific Funding Corporation, a
California corporation (the "Company") and Frank P. Willey (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1995 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of November 1, 1995, and
WHEREAS, pursuant to the provisions of said Plan, the Committee (as
defined in the Plan) of the Board of Directors of the Company, by action duly
taken as of November 1, 1995, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
-------------
any part of an aggregate of 10,000 shares of Common Stock (the "Optioned
Shares"), at the price of $17.00 per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
--------------------------------------
qualify as Incentive Stock Options are designated by an "A" under the category
"Plan." Options intended as separate nonstatutory options are designated by a
"B" under the category "Plan." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
1
<PAGE>
<TABLE>
<CAPTION>
Plan Number of Shares Exercise Dates
- ------- ---------------- -------------------
First Last
------- ---------
<S> <C> <C> <C>
B 10,000 6/13/97 6/13/2007
- ------ ------- ---------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above. Optionee
further understands that the Option(s) granted hereunder shall expire and become
unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by (i) full payment in cash or cash
equivalents, (ii) unrestricted Stock owned by the Optionee, or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award (as defined in the Plan) under the Plan (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (iii) a full
recourse promissory note executed by the Optionee, (iv) cancellation of any
indebtedness owed by the Company to the Optionee, or (v) by any combination of
the foregoing as may be determined by the Committee with respect to the shares
to be purchased.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
2
<PAGE>
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted as Incentive Stock Options and the day
prior to the tenth anniversary of the Option(s) Grant Date with respect to
Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Section 5 of the Plan; or (v) the date
that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsections 5(h) and 5(i) of the Plan.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(A) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422A,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, or a subsidiary of the
Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a
3
<PAGE>
transaction to which Section 425(a) of the Internal Revenue Code
applies, except where the termination of employment is by means of the
employee's disability, in which case said 3 month period may be
extended to 1 year, as provided under Internal Revenue Code Section
422A.
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
------------------------
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, or any subsidiary of the Company, or to
restrict in any way the right of the Company, or any subsidiary of the Company
to terminate his employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
4
<PAGE>
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This limitation shall not apply to any option granted as a Non-
Qualified Stock Option.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
SOUTHEN PACIFIC FUNDING OPTIONEE
CORPORATION
By:_______________________ _________________________
Name:
Title: _________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, of such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
6
<PAGE>
EXHIBIT 5
522138-1
[LETTERHEAD]
August 29, 1996
Southern Pacific Funding Corporation
One Centerpointe Drive, Suite 500
Lake Oswego, Oregon 97035
Re: Stock Options
Gentlemen:
As counsel for Southern Pacific Funding Corporation (the "Company"), we have
participated in the preparation of the Registration Statement which is to be
filed on Form S-8 under the Securities Act of 1933, as amended, relating to the
offering of up to 1,294,800 shares of the Company's Common Stock (the "Shares")
issuable upon the exercise of stock options granted to certain executive
officers, employees and directors of the Company pursuant to the 1995 Stock
Option, Deferred Stock and Restricted Stock Plan (the "Plan"). We have also
examined the proceedings taken and the instruments executed in connection with
the issuance of the Shares.
It is our opinion that, when issued pursuant to the exercise of options under
the Plan, as contemplated in the Registration Statement, the Shares will be
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
FRESHMAN, MARANTZ, ORLANSKI,
COOPER & KLEIN
a professional corporation
<PAGE>
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
Los Angeles, California
August 29, 1996
