<PAGE>
As filed with the Securities and Exchange Commission on March 7, 1997.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
CROSS-CONTINENT AUTO RETAILERS, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 75-2653095
(State or other jurisdiction of (I. R. S. employer identification number)
incorporation or organization)
1201 South Taylor Street
Amarillo, Texas 79101
(Address, including zip code, of Registrant's principal executive offices)
Cross-Continent Auto Retailers, Inc.
Amended and Restated 1996 Stock Option Plan
(Full title of the plan)
ROBERT W. HALL
Senior Vice Chairman
1201 South Taylor Street
Amarillo, Texas 79101
(806) 374-8653
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
Copies to:
KELLY VANCE, ESQ.
Howard, Darby & Levin
1330 Avenue of the Americas
New York, New York 10019
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price per offering registration
to be registered registered(l) share(2) Price(2) fee(2)
- ------------------- ------------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 1,510,308 $19.25 $29,073,429 $8,810
Rights to Purchase
Junior Preferred Stock
and Common Stock(3) 1,510,308
=========================================================================================
</TABLE>
<PAGE>
(1) Pursuant to Rule 416, the registration statement also covers such
indeterminable additional securities as may become issuable as a result of
any future anti-dilution adjustment in accordance with the terms of the
Plan.
(2) Pursuant to Rule 457, the maximum offering price per share and
registration fee have been calculated based upon an exercise price of
$19.25 per share, which was the average of the high and low prices for the
Common Stock reported on the New York Stock Exchange on March 5, 1997.
(3) The Rights initially will trade together with the Common Stock. The
current value attributable to the Rights, if any, is reflected in the
current market price of the Common Stock.
================================================================================
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents filed by Cross-Continent Auto Retailers, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
(a) The Company's Prospectus, dated September 23, 1996, filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, filed pursuant to the Securities Exchange Act of 1934
(the "Exchange Act");
(c) The description of the Company's common stock, par value $.01 per share,
set forth in the section entitled "Description of Capital Stock" contained
in the Company's Amendment No. 3 to Registration Statement on Form S-1
(File No. 333-06585), filed on August 30, 1996, including any amendment or
report filed for the purpose of updating such description; and
(d) All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Company's Certificate of Incorporation and Bylaws set forth the extent to
which officers or directors of the Company may be indemnified against any
liabilities which they may incur. The general effect of such provisions is that
any person made a party to an action, suit or proceeding by reason of the fact
that he is or was a director or officer of the Company, or of another
corporation or other enterprise
3
<PAGE>
for which he served as such at the request of the Company, shall be indemnified
by the Company against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, to the full extent permitted
under the laws of the State of Delaware. The Company's Certificate of
Incorporation and Bylaws give the Board of Directors the authority to extend
such indemnification to employees of the Company as well. These provisions of
the Company's Certificate of Incorporation and Bylaws are not exclusive of any
other indemnification rights to which an officer or director may be entitled,
whether by contract or otherwise.
The general effect of the indemnification provisions contained in Section 145
of the Delaware General Corporation Law is as follows: A director or officer
who, by reason of such directorship or officership, is involved in any action,
suit or proceeding (other than an action by or in the right of the corporation)
may be indemnified by the corporation against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his conduct was unlawful.
A director or officer who, by reason of such directorship or officership, is
involved in any action or suit by or in the right of the corporation may be
indemnified by the corporation against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which he shall have been adjudged to be liable to the
corporation unless and only to the extent that a court of appropriate
jurisdiction shall approve such indemnification.
The Company's Certificate of Incorporation provides that, to the maximum
extent permitted under the General Corporation Law of the State of Delaware, a
director of the Company shall not be personally liable to the Company or to any
of its stockholders for monetary damages for breach of fiduciary duty as a
director of the Company. Section 102(b)(7) of the Delaware General Corporation
Law permits a corporation to include in its charter a provision that eliminates
or limits the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit.
The Company maintains directors' and officers' liability insurance for its
executive officers and directors against certain liabilities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
4
<PAGE>
Item 8. EXHIBITS
--------
4.1 Amended and Restated Certificate of Incorporation of the Company,
(incorporated by reference to Exhibit 3.1 of the Company's quarterly
report on Form 10-Q for the quarterly period ended September 30, 1996).
4.2 Amended and Restated By-Laws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's quarterly report on Form 10-Q for the
quarterly period ended September 30, 1996).
4.3 Specimen Common Stock Certificate of the Company (incorporated by
reference to Exhibit 4.1 of the Company's Registration Statement on Form
S-1 (File No. 333-06585)).
4.4 Rights Agreement, dated as of September 20, 1996, between the Company and
The Bank of New York, as rights agent (incorporated by reference to
Exhibit 4.2 of the Company's quarterly report on Form 10-Q for the
quarterly period ended September 30, 1996).
4.5 Amended and Restated 1996 Stock Option Plan of Cross-Continent Auto
Retailers, Inc.
4.6 Form of Stock Option Agreement between Cross-Continent Auto Retailers,
Inc. and an Optionee.
4.7 Stock Option Agreement dated December 23, 1996 between Cross-Continent
Auto Retailers, Inc. and Ezra P. Mager.
5 Opinion of Howard, Darby & Levin.
23.1 Consent of Price Waterhouse LLP, independent accountants.
23.2 Consent of counsel, Howard, Darby & Levin (included in Exhibit 5).
24 Power of Attorney (included on the signature page of this Registration
Statement).
Item 9. UNDERTAKINGS
------------
The Company hereby undertakes:
(1) To file, during any period in which offers or sales of the registered
securities are being made, a post-effective amendment to this Registration
Statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
5
<PAGE>
(c) 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;
provided, however, that paragraphs (a) and (b) above do not apply if the
- -----------------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section 13(a) or
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 for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company 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 Act and will be governed by the final adjudication of
such issue.
6
<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, thereunto duly
authorized, in the City of Amarillo, State of Texas on March 7, 1997.
CROSS-CONTINENT AUTO
RETAILERS, INC.
By /s/ Robert W. Hall
------------------------------
Robert W. Hall
Senior Vice Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bill A. Gilliland, Robert W. Hall and Emmett M.
Rice, Jr., and each of them, or any one of them, his true and lawful attorneys-
in-fact and agents, with full power of substitution, for and in his name, place
and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
or any 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 might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, and each of them, or
any of them, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Bill A. Gilliland Chairman, Chief Executive March 7, 1997
- ------------------------ Officer (principal executive
Bill A. Gilliland officer) and Director
/s/ Robert W. Hall Senior Vice Chairman and March 7, 1997
- ------------------------ Director
Robert W. Hall
7
<PAGE>
/s/ Emmett M. Rice, Jr. Senior Vice President, March 7, 1997
- ------------------------ Chief Operating Officer
Emmett M. Rice, Jr. and Director
/s/ John W. Gaines Vice President of Finance March 7, 1997
- ------------------------ (principal financial officer)
John W. Gaines
/s/ Charles D. Winton Vice President and March 7, 1997
- ------------------------ Chief Accountant
Charles D. Winton (principal accounting
officer)
/s/ Robert F. Green Director March 7, 1997
- ------------------------
Robert F. Green
8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibits Description Page
- -------- ----------- ----
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company,
(incorporated by reference to Exhibit 3.1 of the Company's quarterly
report on Form 10-Q for the quarterly period ended September 30,
1996).
4.2 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 of the Company's quarterly report on
Form 10-Q for the quarterly period ended September 30, 1996).
4.3 Specimen Common Stock Certificate of the Company
(incorporated by reference to Exhibit 4.1 of the Company's
Registration Statement on Form S-1 (File No. 333-06585)).
4.4 Rights Agreement, dated as of September 20, 1996, between the
Company and The Bank of New York, as rights agent
(incorporated by reference to Exhibit 4.2 of the Company's
quarterly report on Form 10-Q for the quarterly period ended
September 30, 1996).
4.5 Amended and Restated 1996 Stock Option Plan of Cross-Continent
Auto Retailers, Inc.
4.6 Form of Stock Option Agreement between Cross-Continent Auto
Retailers, Inc. and an Optionee.
4.7 Stock Option Agreement dated December 23, 1996 between
Cross-Continent Auto Retailers, Inc. and Ezra P. Mager.
5 Opinion of Howard, Darby & Levin.
23.1 Consent of Price Waterhouse LLP, independent accountants.
23.2 Consent of counsel, Howard, Darby & Levin (included in Exhibit 5).
24 Power of Attorney (included on the signature page of this Registration
Statement).
</TABLE>
<PAGE>
EXHIBIT 4.5
CROSS-CONTINENT AUTO RETAILERS, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
1. Purpose; Types of Awards; Construction.
The purpose of the Amended and Restated 1996 Stock Option Plan (the "Plan")
of Cross-Continent Auto Retailers, Inc., a Delaware corporation (the "Company"),
is to attract and retain employees (including officers), directors and
independent contractors of the Company, or any Subsidiary or Affiliate which now
exists or hereafter is organized or acquired, and to furnish additional
incentives to such persons by encouraging them to acquire a proprietary interest
in the Company. Pursuant to Section 6 of the Plan, there may be granted
Options, including "incentive stock options" and "nonqualified stock options".
The Plan is intended to satisfy the requirements of Rule 16b-3 promulgated under
Section 16 of the Exchange Act and shall be interpreted in a manner consistent
with the requirements thereof.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as set forth
below:
(a) "Administrator" means the Board or, if and so long as a Committee
has been established and is in existence, the Committee.
(b) "Affiliate" means any entity if, at the time of granting of an
Option, (i) the Company, directly, owns at least 20% of the combined voting
power of all classes of stock of such entity or at least 20% of the ownership
interests in such entity or (ii) such entity, directly or indirectly, owns at
least 20% of the combined voting power of all classes of stock of the Company.
(c) "Beneficiary" means the person, persons, trust or trusts which
have been designated by an Optionee in his or her most recent written
beneficiary designation filed with the Company to receive the benefits specified
under the Plan upon his or her death, or, if there is no designated Beneficiary
or surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the applicable laws of descent and distribution to receive
such benefits.
(d) "Board" means the Board of Directors of the Company.
(e) "Change in Control" means a change in control of the Company which
will be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than an Exempt Person), is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
then outstanding voting securities; provided that no Change of
--------
<PAGE>
Control shall be deemed to have occurred as the result of an
acquisition by the Company of any of its then outstanding voting
securities which, by reducing the number of shares outstanding,
increases the proportionate number of shares of voting securities
beneficially owned by any person to 50% or more of the combined voting
power of the Company's then outstanding voting securities; provided
--------
further, that if a person shall become the beneficial owner of 50% or
-------
more of the combined voting power of the Company's then outstanding
voting securities by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the
beneficial owner of any additional voting securities of the Company,
then a Change of Control shall be deemed to have occurred; and
provided further, that, notwithstanding anything to the contrary
----------------
contained in the Plan, if the Board of Directors of the Company
determines in good faith that a person who would otherwise be a
beneficial owner as defined pursuant to the foregoing provisions of
this paragraph has become such inadvertently, in a manner that
otherwise would cause a Change of Control, and such person divests as
promptly as practicable a sufficient number of voting securities so
that such person would no longer be a beneficial owner, then a Change
of Control shall be deemed to not have occurred for any purposes of
this Plan;
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction described
in clause (i), (iii), or (iv) of this Section 2(e)) whose election by
the Board or nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity)
50% or more of the combined voting power of the voting securities of
the Company or such surviving or parent entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no "person" (as hereinbefore defined), other
than an Exempt Person, acquired 50% or more of the combined voting
power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve of a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets (or any transaction having a similar effect).
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to
2
<PAGE>
time.
(g) "Committee" means the committee, consisting exclusively of two or
more Non-Employee Directors (as defined in Rule 16b-3), if and as the same may
be established by the Board to administer the Plan; provided, however, that to
the extent required for the Plan to comply with the applicable provisions of
Section 162(m) of the Code, "Committee" means either such committee or a
subcommittee of that committee, as the case may be, which shall be constituted
to comply with the applicable requirements of Section 162(m) of the Code and the
regulations promulgated thereunder.
(h) "Company" means Cross-Continent Auto Retailers, Inc., a
corporation organized under the laws of the State of Delaware, or any successor
corporation.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and as now or hereafter construed, interpreted and
applied by regulations, rulings and cases.
(j) "Exempt Person" means (1) the Company, (2) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, (3)
any corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of Stock, or
(4) any person or group of persons who, immediately prior to the adoption of
this Plan, owned more than 50% of the combined voting power of the Company's
then outstanding voting securities.
(k) "Fair Market Value" means, with respect to Stock or other
property, the fair market value of such Stock or other property determined by
such methods or procedures as shall be established from time to time by the
Administrator. Notwithstanding the foregoing, the per share Fair Market Value
of Stock as of a particular date shall mean (i) if the shares of Stock are then
listed on a national securities exchange, the closing sales price per share of
Stock on the national securities exchange on which the stock is principally
traded, for the last preceding date on which there was a sale of such Stock on
such exchange, or (ii) if the shares of Stock are then traded on the National
Market System of the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), the reported per share closing price of the Stock
on the day prior to such date or, if there was no such price reported for such
date, on the next preceding date for which such a price was reported, or (iii)
if the shares of Stock are then traded in an over-the-counter market other than
on the NASDAQ National Market System, the average of the closing bid and asked
prices for the shares of Stock in such over-the-counter market for the last
preceding date on which there was a sale of such Stock in such market, or (iv)
if the shares of Stock are not then listed on a national securities exchange or
traded in an over-the-counter market, such value as the Administrator, in its
sole discretion, shall determine in good faith.
(l) "ISO" means any Option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code provided
that the Plan has been approved by the stockholders of the Company no later than
twelve months after the date of adoption of the Plan by the Board.
(m) "NQSO" means any Option not designated as an ISO.
3
<PAGE>
(n) "Option" means a right, granted to an Optionee under Section 6(b)
of the Plan, to purchase shares of Stock. An Option may be either an ISO or an
NQSO, provided that ISOs may be granted only to employees of the Company or a
Subsidiary.
(o) "Optionee" means a person who, as an employee, director or
independent contractor of the Company, a Subsidiary or an Affiliate, has been
granted an Option.
(p) "Plan" means this Cross-Continent Auto Retailers, Inc. Amended and
Restated 1996 Stock Option Plan, as amended from time to time.
(q) "Rule 16b-3" means Rule 16b-3, as from time to time in effect,
promulgated by the Securities and Exchange Commission under Section 16 of the
Exchange Act, including any successor to such Rule.
(r) "Stock" means the common stock, par value $.01 per share, of the
Company.
(s) "Stock Option Agreement" means any written agreement, contract, or
other instrument or document evidencing an Option.
(t) "Subsidiary" means any corporation in which the Company, directly
or indirectly, owns stock possessing 50% or more of the total combined voting
power of all classes of stock of such corporation.
3. Administration.
The Plan shall be administered by the Administrator. The Administrator
shall have the authority in its discretion, subject to and not inconsistent with
the express provisions of the Plan, to administer the Plan and to exercise all
the powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority to grant Options; to determine the persons to whom and
the time or times at which Options shall be granted; to determine the type and
number of Options to be granted, the number of shares of Stock to which Options
may relate and the terms, conditions, restrictions and performance criteria
relating to any Options; to determine whether, to what extent, and under what
circumstances Options may be settled, canceled, forfeited, exchanged, or
surrendered; to make adjustments in the terms and conditions of, and the
criteria and performance objectives included in, Options in recognition of
unusual or non-recurring events affecting the Company or any Subsidiary or
Affiliate or the financial statements of the Company or any Subsidiary or
Affiliate, or in response to changes in applicable laws, regulations, or
accounting principles; to designate Affiliates; to construe and interpret the
Plan and any Options; to prescribe, amend and rescind rules and regulations
relating to the Plan; to determine the terms and provisions of the Stock Option
Agreements (which need not be identical for each Optionee); and to make all
other determinations deemed necessary or advisable for the administration of the
Plan.
The Administrator may appoint a chairperson and a secretary and may make
such rules and regulations for the conduct of its business as it shall deem
advisable, and shall keep minutes of its meetings. All determinations of the
Administrator shall be made by a majority of its members either
4
<PAGE>
present in person or participating by conference telephone at a meeting or by
written consent. The Administrator may delegate to one or more of its members or
to one or more agents such administrative duties as it may deem advisable, and
the Administrator or any person to whom it has delegated duties as aforesaid may
employ one or more persons to render advice with respect to any responsibility
the Administrator or such person may have under the Plan. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all persons, including the Company, and any Subsidiary, Affiliate or
Optionee (or any person claiming any rights under the Plan from or through any
Optionee) and any stockholder.
No member of the Board or Committee shall be liable for any action taken or
determination made in good faith with respect to the Plan or any Option granted
hereunder.
4. Eligibility.
Options may be granted to employees (including officers), directors and
independent contractors of the Company and its present or future Subsidiaries
and Affiliates, in the discretion of the Administrator. In determining the
person to whom Options shall be granted and the type of Options granted
(including the number of shares to be covered by such Options), the
Administrator shall take into account such factors as the Administrator shall
deem relevant in connection with accomplishing the purposes of the Plan. No
person shall be granted during any calendar year one or more Options under the
Plan for, in the aggregate, more than 690,000 shares of Stock.
5. Stock Subject to the Plan.
The maximum number of shares of Stock reserved for the grant of Options
under the Plan shall be 1,380,000 shares of Stock, subject to adjustment as
provided herein. Such shares may, in whole or in part, be authorized but
unissued shares or shares that shall have been or may be reacquired by the
Company in the open market, in private transactions or otherwise. The number of
shares of Stock available for issuance under the Plan shall be reduced by the
number of shares of Stock subject to outstanding Options. If any shares subject
to an Option are forfeited, canceled, exchanged or surrendered or if an Option
otherwise terminates or expires without a distribution of shares to the
Optionee, the shares of Stock with respect to such Option shall, to the extent
of any such forfeiture, cancellation, exchange, surrender, termination or
expiration, again be available for Options under the Plan.
In the event that the Administrator shall determine that any dividend or
other distribution (whether in the form of cash, Stock, or other property),
recapitalization, stock split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Stock such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of an Optionee under the Plan, then the Administrator shall make such
equitable changes or adjustments as it deems necessary or appropriate to any or
all of (i) the number and kind of shares of Stock which may thereafter be issued
in connection with Options, (ii) the number and kind of shares of Stock issued
or issuable in respect of outstanding Options, and (iii) the exercise price,
grant price, or purchase price relating to any Option; provided that, with
respect to ISOs, such adjustment shall be made in accordance with Section 424(h)
of the Code.
5
<PAGE>
6. Specific Terms of Options.
(a) General. The term of each Option shall be for such period as may
-------
be determined by the Administrator. The Administrator may make rules relating
to Options, and may impose on any Option or the exercise thereof, at the date of
grant or thereafter, such additional terms and conditions, not inconsistent with
the provisions of the Plan, as the Administrator shall determine.
(b) Options. The Administrator is authorized to grant Options to
-------
Optionees on the following terms and conditions:
(i) Type of Option. The Stock Option Agreement evidencing the
grant of an Option under the Plan shall designate the Option as an ISO
(in the event its terms, and the individual to whom it is granted,
satisfy the requirements for ISOs under the Code), or an NQSO.
(ii) Exercise Price. The exercise price per share of Stock
purchasable under an Option shall be determined by the Administrator;
provided that, except as may otherwise be required by the Code, in the
case of an ISO, such exercise price shall be not less than the Fair
Market Value of a share of Stock on the date of grant of such Option
and, in the case of an ISO granted to the holder of more than 10% of
the Stock outstanding at the date of grant of such Option, such
exercise price shall be not less than 110% of the Fair Market Value on
such date of grant. In no event shall the exercise price for the
purchase of shares of Stock be less than par value. The exercise
price for Stock subject to an Option may be paid in cash or by an
exchange of Stock previously owned by the Optionee, or a combination
of both, in an amount having a combined value equal to such exercise
price. Any shares of Stock exchanged upon the exercise of any Option
shall be valued at the Fair Market Value on the date on which such
shares are exchanged. An Optionee also may elect to pay all or a
portion of the aggregate exercise price by having shares of Stock with
a Fair Market Value on the date of exercise equal to the aggregate
exercise price withheld by the Company or sold by a broker-dealer in
accordance with applicable law.
(iii) Term and Exercisability of Options. The date on which the
Administrator adopts a resolution expressly granting an Option shall
be considered the day on which such Option is granted. Options shall
be exercisable over the exercise period (which shall not exceed ten
years from the date of grant or five years from the date of grant in
the case of an ISO granted to a holder of more than 10% of Stock
outstanding as of such date), at such times and upon such conditions
as the Administrator may determine, as reflected in the Stock Option
Agreement. An Option may be exercised to the extent of any or all
full shares of Stock as to which the Option has become exercisable, by
giving written notice of such exercise to the Company's Secretary and
paying the exercise price as described in Section 6(b)(ii).
(iv) Termination of Employment, etc. An Option may not be
exercised unless the Optionee is then in the employ of, is then a
director of, or then maintains an independent contractor relationship
with, the Company or any Subsidiary or Affiliate (or a company or a
parent or subsidiary company of such company issuing
6
<PAGE>
or assuming the Option in a transaction to which Section 424(a) of the
Code applies), and unless the Optionee has continuously maintained any
of such relationships, since the date of grant of the Option; provided
that, the Stock Option Agreement may contain provisions extending the
exercisability of Options, in the event of specified terminations, to
a date not later than the expiration date of such Option. The
Administrator may establish a period during which the Beneficiaries of
an Optionee who died while an employee, director or independent
contractor of the Company or any Subsidiary or Affiliate or during any
extended period referred to in the immediately preceding proviso may
exercise those Options which were exercisable on the date of the
Optionee's death; provided that no Option shall be exercisable after
its expiration date.
(v) Nontransferability. Options shall not be transferable by an
Optionee except by will or the laws of descent and distribution and
shall be exercisable during the lifetime of an Optionee only by such
Optionee or his guardian or legal representative.
(vi) Other Provisions. Options may be subject to such other
conditions as the Administrator may prescribe in its discretion.
7. Change in Control Provisions.
In the event of a Change in Control, any and all Options then outstanding
shall become fully exercisable and vested, whether or not theretofore vested and
exercisable.
8. General Provisions.
(a) Compliance with Legal and Exchange Requirements. The Plan, the
-----------------------------------------------
granting and exercising of Options thereunder, and the other obligations of the
Company under the Plan and any Stock Option Agreement, shall be subject to all
applicable federal and state laws, rules and regulations, and to such approvals
by any regulatory or governmental agency as may be required. The Company, in
its discretion, may postpone the issuance or delivery of Stock under any Option
until completion of such stock exchange listing or registration or qualification
of such Stock or other required action under any state, federal or foreign law,
rule or regulation as the Company may consider appropriate, and may require any
Optionee to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of Stock in
compliance with applicable laws, rules and regulations.
(b) No Right to Continued Employment, etc. Nothing in the Plan or in
--------------------------------------
any Option granted or Stock Option Agreement entered into pursuant to the Plan
shall confer upon any Optionee the right to continue in the employ of, or to
continue as a director of or an independent contractor to, the Company, any
Subsidiary or any Affiliate, as the case may be, or to be entitled to any
remuneration or benefits not set forth in the Plan or such Stock Option
Agreement or to interfere with or limit in any way the right of the Company or
any such Subsidiary or Affiliate to terminate such Optionee's employment,
directorship or independent contractor relationship.
(c) Taxes. The Company or any Subsidiary or Affiliate is authorized
-----
to withhold
7
<PAGE>
from any Option granted, any payment relating to an Option under the Plan
(including from a distribution of Stock), or any other payment to an Optionee,
amounts of withholding and other taxes due in connection with any transaction
involving an Option, and to take such other action as the Administrator may deem
advisable to enable the Company and an Optionee to satisfy obligations for the
payment of withholding taxes and other tax obligations relating to any Option.
This authority shall include authority to withhold or receive Stock or other
property and to make cash payments in respect thereof in satisfaction of an
Optionee's tax obligations.
(d) Amendment and Termination of the Plan. The Board may at any time
-------------------------------------
and from time to time alter, amend, suspend, or terminate the Plan in whole or
in part. Notwithstanding the foregoing, no amendment shall affect adversely any
of the rights of any Optionee, without such Optionee's consent, under any Option
theretofore granted under the Plan.
(e) No Rights to Options; No Stockholder Rights. No Optionee shall
-------------------------------------------
have any claim to be granted any Option under the Plan, and there is no
obligation for uniformity of treatment of Optionees. Except as provided
specifically herein, an Optionee or a transferee of an Option shall have no
rights as a stockholder with respect to any shares covered by the Option until
the date of the issuance of a stock certificate to such Optionee for such
shares.
(f) Unfunded Status of Options. The Plan is intended to constitute
--------------------------
an "unfunded" plan for incentive and deferred compensation. Nothing contained
in the Plan or any Option shall give any such Optionee any rights that are
greater than those of a general creditor of the Company.
(g) No Fractional Shares. No fractional shares of Stock shall be
--------------------
issued or delivered pursuant to the Plan or any Option. The Administrator shall
determine whether cash, other Options, or other property shall be issued or paid
in lieu of such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise eliminated.
(h) Governing Law. The Plan and all determinations made and actions
-------------
taken pursuant hereto shall be governed by the laws of the State of Delaware
without giving effect to the conflict of laws principles thereof.
(i) Effective Date. The Plan shall take effect upon its adoption by
--------------
the Board.
(j) Plan Termination. The Board may terminate the Plan at any time
----------------
with respect to any shares of Stock that are not subject to Options. Unless
terminated earlier by the Board, the Plan shall terminate ten years after the
effective date and no Options shall be granted under the Plan after such date.
Termination of the Plan under this Section 8(j) will not affect the rights and
obligations of any Optionee with respect to options granted prior to
termination.
8
<PAGE>
EXHIBIT 4.6
CROSS-CONTINENT AUTO RETAILERS, INC.
FORM OF STOCK OPTION AGREEMENT
Stock Option Agreement (the "Agreement") dated this _____ day of
________, 199_, between Cross-Continent Auto Retailers, Inc., a Delaware
corporation (the "Company"), and _______________ (the "Optionee").
The Board of Directors of the Company has adopted the Company's
Amended and Restated 1996 Stock Option Plan (the "Plan") for the purpose of
attracting and retaining employees (including officers), directors and
independent contractors of the Company, or any Subsidiary or Affiliate.
The Optionee is an employee of the Company.
Capitalized terms used herein that are not otherwise defined have the
same meanings as set forth in the Plan.
In consideration of the premises and the mutual agreements set forth
below, the parties hereto agree as follows:
1. Grant of Option; Exercise Price. Pursuant to the provisions of the
Plan, the Company hereby grants to the Optionee as of ______________ __, 199_
(the "Grant Date"), subject to the terms and conditions of the Plan and subject
further to the terms and conditions herein set forth, the right and option to
purchase (the "Option") from the Company all or any part of an aggregate of
________ shares (the "Shares") of the common stock, par value $.01 per share, of
the Company (the "Common Stock") at a purchase price of $____ per Share (the
"Exercise Price"), such Option to be exercisable as hereinafter provided.
2. Type of Option. [The Option is a non-qualified stock option. It is not
eligible to be an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").][The Option is
eligible to be an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").]
3. Expiration Date. The Option shall expire on the tenth anniversary of
the Grant Date (the "Expiration Date"), unless earlier terminated in accordance
with Paragraph 7.
4. Nontransferability. The Option and any other rights granted hereunder
shall not be transferable or assignable by the Optionee (whether by operation of
law or otherwise) except by will or the laws of descent and distribution and
shall be exercisable during the lifetime of the Optionee only by the Optionee or
his guardian or legal representative, nor shall the Option or any other rights
granted hereunder be subject to execution, attachment or any similar process.
Upon any attempt to transfer, pledge, assign or otherwise dispose of the Option
or of such rights contrary to the provisions hereof or of the Plan, or upon any
levy of attachment or similar process upon the Option or such rights, the Option
and such rights shall, at the election of the Company, become null and void.
5. Exercise of Option. (a) Subject to the other terms of this Agreement
and the Plan regarding
<PAGE>
the exercisability of the Option, the Option may be exercised in whole or in
part at any time or from time to time after the date of this Agreement and prior
to the Expiration Date. Shares issued upon a partial exercise of the Option
shall be deducted from the number of Shares issuable upon any subsequent
exercise of the Option. The Option shall be void and of no effect after the
Expiration Date.
(b) The Option may be exercised, at any time, or from time to time,
by giving written notice of such exercise (the "Notice of Exercise") to the
Company's Secretary and paying an amount equal to the Exercise Price multiplied
by the number of Shares being purchased pursuant to the Option (the "Total
Exercise Price") (i) in United States dollars in cash or by check, bank draft or
money order payable to the order of the Company, (ii) through the delivery to
the Company of shares of Common Stock already owned by the Optionee with an
aggregate Fair Market Value on the date of exercise equal to the Total Exercise
Price, (iii) by having Shares with an aggregate Fair Market Value on the date of
exercise equal to the Total Exercise Price (A) withheld from the Optionee by the
Company or (B) sold by a broker-dealer and the proceeds therefrom assigned to
the Company in accordance with applicable law, or (iv) by any combination of the
above methods of payment. Further, the Optionee may not purchase fewer than 100
Shares at any one time unless the number purchased at such time is the total
number of Shares then exercisable.
6. Taxes. The Company or any Subsidiary or Affiliate is authorized to
withhold from any payment relating to the Option (including from a distribution
of Shares) or any other payment to the Optionee, amounts of withholding and
other taxes due in connection with any transaction involving the Option, and to
take such other action as the Administrator may deem advisable to enable the
Company or such Subsidiary or Affiliate and the Optionee to satisfy obligations
for the payment of withholding taxes and other tax obligations relating to the
Option. This authority shall include authority to withhold or receive Shares or
other property and to make cash payments in respect thereof in satisfaction of
the Optionee's tax obligations.
7. Termination of Employment, etc. (a) General Rule. If the Optionee
ceases to be (i) in the employ of, (ii) a director of, or (iii) engaged in an
independent contractor relationship with, the Company or any Subsidiary or
Affiliate (or a company or a parent or subsidiary company of such company
issuing or assuming the Option in a transaction to which Section 424(a) of the
Code applies) (each of (i), (ii) and (iii) and, collectively, "Service"), the
Option, to the extent not previously exercised, shall expire and no longer be
exercisable, whether or not vested, upon the cessation of the Service.
(b) Death. In the event of the death of the Optionee while in Service
or at any time after cessation of Service (provided that the Option shall not
have been earlier cancelled pursuant to subparagraph (a) above), the Option
shall be exercisable at any time or from time to time prior to the Expiration
Date by the Beneficiaries of the Optionee.
8. Adjustments. In the event that the Administrator shall determine, in
its sole discretion, that any dividend or other distribution (whether in the
form of cash, shares of Common Stock, or other property), recapitalization,
stock split, reverse split, any reorganization, merger, consolidation, spin-off,
combination, repurchase, share exchange, license arrangement, strategic alliance
or other similar corporate transaction or event affects the Shares such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of the Optionee under the Plan, then the Administrator shall make such
equitable changes or adjustments as it deems necessary or appropriate to any or
all of (i) the number and kind of Shares which may thereafter be issued in
connection with Options, (ii) the number and kind of Shares issued or issuable
in respect of outstanding Options, and (iii) the Exercise Price relating to any
Option.
-2-
<PAGE>
9. No Rights as Stockholder. The Optionee shall have no rights as a
stockholder with respect to any Shares subject to the Option prior to the date
of issuance to the Optionee of a certificate or certificates for such Shares.
10. No Right to Continued Employment. Nothing in the Plan or in the Option
or this Agreement shall confer upon the Optionee the right to continue or to be
entitled to any remuneration or benefits not set forth in the Plan or this
Agreement or to interfere with or limit in any way the right of the Company or
any Subsidiary or Affiliate to terminate the Optionee's Service.
11. Compliance With Legal and Exchange Requirements. The Plan, the
granting and exercising of Options thereunder, the delivery of Shares upon the
exercise of the Option and the other obligations of the Company under the Plan
and this Agreement shall be subject to all applicable federal and state laws,
rules and regulations, and to such approvals by any regulatory or governmental
agency as may be required. The Company, in its discretion, may postpone the
issuance or delivery of Shares under the Option until completion of such stock
exchange listing or registration or qualification of such Shares or other
required action under any state, federal or foreign law, rule or regulation as
the Company may consider appropriate, and may require the Optionee to make such
representations and furnish such information as it may consider appropriate in
connection with the issuance or delivery of Shares in compliance with applicable
laws, rules and regulations.
12. Change in Control Provisions. In the event of a Change in Control, the
Option shall become fully exercisable and vested, whether or not theretofore
vested and exercisable.
13. Optionee Bound by Plan. The Optionee hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all the terms and provisions thereof.
14. Notices. All notices or any other communications hereunder shall be in
writing and delivered personally or by registered or certified mail or overnight
courier, addressed, if to the Company, to Cross-Continent Auto Retailers, Inc.,
P.O. Box 750, Amarillo, Texas 79105. Attention: Secretary, and if to the
Optionee, to the Optionee's last mailing address known to the Company, subject
to the right of either party to designate at any time hereafter in writing some
other address.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
conflict of laws principles thereof.
16. No Assignment. Neither this Agreement nor any of the rights or
obligations of the Optionee hereunder may be transferred or assigned by the
Optionee except as set forth in paragraph 4 hereof.
17. Benefits. This Agreement shall be binding upon and inure to the
benefit of the parties hereto. This Agreement is for the sole benefit of the
parties hereto and not for the benefit of any other party.
18. Severability. If any provision of this Agreement shall be determined
to be illegal and unenforceable by any court of law, the remaining provisions
shall be severable and enforceable in accordance with their terms.
19. Amendments. No modification, amendment or waiver of any provision of
this Agreement shall be effective unless it is in writing and signed by the
parties hereto.
-3-
<PAGE>
20. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Administrator has caused this Agreement to be
executed by any of the Chairman, the Senior Vice Chairman, a Senior Vice
President or a Vice President of the Company as of the day and year first above
written.
For the Plan Administrator
By:
--------------------------------------
Name:
Title:
- -------------------------------
Optionee
-4-
<PAGE>
EXHIBIT 4.7
CROSS-CONTINENT AUTO RETAILERS, INC.
STOCK OPTION AGREEMENT
Stock Option Agreement (the "Agreement") dated this 23/rd/ day of December,
1996, between Cross-Continent Auto Retailers, Inc., a Delaware corporation (the
"Company"), and Ezra P. Mager (the "Optionee").
On September 3, 1996, the Board of Directors of the Company adopted a
resolution granting to the Optionee a stock option for 130,308 shares.
The Optionee is an employee of the Company.
Capitalized terms used herein that are not otherwise defined have the same
meanings as set forth in the Plan.
1. Grant of Option; Exercise Price. The Company hereby grants to the Optionee
subject to the terms and conditions herein set forth, the right and option to
purchase (the "Option") from the Company all or any part of an aggregate of
130,308 shares (the "Shares") of the common stock, par value $.01 per share, of
the Company (the "Common Stock") at a purchase price of $14.00 per Share (the
"Exercise Price"), such Option to be exercisable as hereinafter provided.
2. Type of Option. The Option is not eligible to be an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
3. Expiration Date. The Option shall expire on September 3, 2006 (the
"Expiration Date"), unless earlier terminated in accordance with Paragraph 7.
4. Nontransferability. The Option and any other rights granted hereunder shall
not be transferable or assignable by the Optionee (whether by operation of law
or otherwise) except by will or the laws of descent and distribution or, if then
permitted under Rule 16b-3, pursuant to a qualified domestic relations order as
defined under the Code or Title I of the Employee Retirement Income Security Act
of 1974, as amended, or the rules thereunder, and shall be exercisable during
the lifetime of the Optionee only by the Optionee or his guardian or legal
representative, nor shall the Option or any other rights granted hereunder be
subject to execution, attachment or any similar process. Upon any attempt to
transfer, pledge, assign or otherwise dispose of the Option or of such rights
contrary to the provisions hereof or of the Plan, or upon any levy of attachment
or similar process upon the Option or such rights, the Option and such rights
shall, at the election of the Company, become null and void.
5. Exercise of Option. (a) Subject to the other terms of this Agreement
regarding the exercisability of the Option, the Option may be exercised in whole
or in part at any time or times after December 23, 1996 and prior to the
Expiration Date. Shares issued upon a partial exercise of the Option shall be
deducted from the number of Shares issuable upon any subsequent exercise of the
Option. The Option shall be void and of no effect after the Expiration Date.
(b) The Option may be exercised, at any time, or from time to time, to the
extent of any or all full Shares as to which the Option has become exercisable,
by giving written notice of such
<PAGE>
exercise (the "Notice of Exercise") to the Company's Secretary and paying an
amount equal to the Exercise Price multiplied by the number of Shares being
purchased pursuant to the Option (the "Total Exercise Price") (i) in United
States dollars in cash or by check, bank draft or money order payable to the
order of the Company, (ii) through the delivery to the Company of shares of
Common Stock already owned by the Optionee with an aggregate Fair Market Value
on the date of exercise equal to the Total Exercise Price, (iii) by having
Shares with an aggregate Fair Market Value on the date of exercise equal to the
Total Exercise Price (A) withheld by the Company or (B) sold by a broker-dealer
under circumstances meeting the requirements of 12 C.F.R. (S)220 or any
successor thereof, or (iv) by any combination of the above methods of payment.
Further, the Optionee may not purchase fewer than 100 Shares at any one time
unless the number purchased at such time is the total number of Shares then
exercisable.
6. Taxes. The Company or any Subsidiary or Affiliate is authorized to
withhold from any payment relating to the Option (including from a distribution
of Shares) or any other payment to the Optionee, amounts of withholding and
other taxes due in connection with any transaction involving the Option, and to
take such other action as the Committee may deem advisable to enable the Company
or such Subsidiary or Affiliate and the Optionee to satisfy obligations for the
payment of withholding taxes and other tax obligations relating to the Option.
This authority shall include authority to withhold or receive Shares or other
property and to make cash payments in respect thereof in satisfaction of the
Optionee's tax obligations.
7. Termination of Employment, etc. (a) General Rule. The fact that the
Optionee ceases to be (i) in the employ of, (ii) a director of, or (iii) engaged
in an independent contractor relationship with, the Company or any Subsidiary or
Affiliate (or a company or a parent or subsidiary company of such company
issuing or assuming the Option in a transaction to which Section 424(a) of the
Code applies) (each of (i), (ii) and (iii) and, collectively, "Service"), shall
not affect or limit in any way the Optionee's rights to exercise the Option at
any time prior to the Expiration Date.
(b) Death. In the event of the death of the Optionee, the Option
shall be exercisable prior to the Expiration Date and not later than one year
after his death by the personal representative of the Optionee or the person,
persons, trust or trusts entitled by will or the applicable laws of descent and
distribution to receive an interest in the Option, to the extent of their
interests in the Option.
8. Adjustments. In the event that any dividend or other distribution (whether
in the form of cash, shares of Common Stock, or other property),
recapitalization, stock split, reverse split, any reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange, or other
similar corporate transaction or event affects the Shares such that an
adjustment is necessary or appropriate in order to prevent dilution or
enlargement of the rights of the Optionee under the Option, then the Committee
shall make such equitable changes or adjustments as it deems necessary or
appropriate to any or all of (i) the number and kind of Shares which may
thereafter be issued in connection with the Option, and (ii) the Exercise Price.
9. No Rights as Stockholder. The Optionee shall have no rights as a
stockholder with respect to any Shares subject to the Option prior to the date
of issuance to the Optionee of a certificate or certificates for such Shares.
10. No Right to Continued Employment. Nothing in the Plan or in the Option or
this Agreement shall confer upon the Optionee the right to continue or to be
entitled to any remuneration or benefits not set forth in this Agreement or to
interfere with or limit in any way the right of the Company or any Subsidiary or
Affiliate to terminate the Optionee's Service.
-2-
<PAGE>
11. Compliance With Legal and Exchange Requirements. The granting and
exercising of Options hereunder, the delivery of Shares upon the exercise of the
Option and the other obligations of the Company under this Agreement shall be
subject to all applicable federal and state laws, rules and regulations, and to
such approvals by any regulatory or governmental agency as may be required. The
Company, in its discretion, may postpone the issuance or delivery of Shares
under the Option until completion of such stock exchange listing or registration
or qualification of such Shares or other required action under any state,
federal or foreign law, rule or regulation as the Company may consider
appropriate, and may require the Optionee to make such representations and
furnish such information as it may consider appropriate in connection with the
issuance or delivery of Shares in compliance with applicable laws, rules and
regulations.
12. Notices. All notices or any other communications hereunder shall be in
writing and delivered personally or by registered or certified mail or overnight
courier, addressed, if to the Company, to Cross-Continent Auto Retailers, Inc.,
P.O. Box 750, Amarillo, Texas 79105. Attention: Secretary, and if to the
Optionee, to the Optionee's last mailing address known to the Company, subject
to the right of either party to designate at any time hereafter in writing some
other address.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
conflict of laws principles thereof.
14. No Assignment. Neither this Agreement nor any of the rights or obligations
of the Optionee hereunder may be transferred or assigned by the Optionee except
as set forth in paragraph 4 hereof.
15. Benefits. This Agreement shall be binding upon and inure to the benefit of
the parties hereto. This Agreement is for the sole benefit of the parties
hereto and not for the benefit of any other party.
16. Severability. If any provision of this Agreement shall be determined to be
illegal and unenforceable by any court of law, the remaining provisions shall be
severable and enforceable in accordance with their terms.
17. Amendments. No modification, amendment or waiver of any provision of this
Agreement shall be effective unless it is in writing and signed by the parties
hereto.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
any of the Chairman, the Senior Vice Chairman, a Senior Vice President or a Vice
President of the Company as of the day and year first above written.
CROSS-CONTINENT AUTO RETAILERS, INC.
By: /s/ Robert W. Hall
-------------------------------------
Name: Robert W. Hall
Title: Senior Vice Chairman
/s/ Ezra P. Mager
- ------------------------------------
Optionee
-4-
<PAGE>
Exhibit 5
[Letterhead of Howard, Darby & Levin]
March 7, 1997
Cross-Continent Auto Retailers, Inc.
1201 South Taylor Street
Amarillo, Texas 79101
Dear Sirs:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act"), of 1,380,000 shares of common stock, par value $.0l per
share (the "Plan Shares"), of Cross-Continent Auto Retailers, Inc., a Delaware
corporation (the "Company"), issuable by the Company upon the exercise of stock
options granted or to be granted pursuant to the Company's Amended and Restated
1996 Stock Option Plan (the "Plan") and 130,308 shares of common stock, par
value $.01 per share (the "Agreement Shares" and, together with the Plan Shares,
the "Shares"), of the Company issuable by the Company upon the exercise of stock
options granted pursuant to a Stock Option Agreement dated December 23, 1996
between the Company and Ezra P. Mager (the "Agreement"), we have reviewed such
corporate records, certificates and other documents, and such questions of law,
as we have deemed necessary or appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that when the registration
statement on Form S-8 in respect of the Shares has become effective under the
Act and the Plan Shares or the Agreement Shares have been duly issued upon the
exercise of stock options pursuant to the Plan or the Agreement, respectively,
and assuming compliance with the Act, the Plan Shares or the
<PAGE>
Agreement Shares, as the case may be, will be duly and validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ Howard, Darby & Levin
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 21, 1996, relating to the
financial statements of Cross-Continent Auto Retailers, Inc., which appears on
page F-2 of the Company's Prospectus dated September 23, 1996. We also hereby
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our report dated June 4, 1996, relating to the financial statements of
Jim Glover Dodge, Inc., which appears on page F-21 of the Company's Prospectus
dated September 23, 1996 and our report dated July 3, 1996, relating to the
financial statements of Lynn Hickey Dodge Inc., which appears on page F-30 of
the Company's Prospectus dated September 23, 1996.
/s/ PRICE WATERHOUSE LLP
Fort Worth, Texas
March 7, 1997
