Exhibit 4.2
FORM OF
STATUTORY INCENTIVE STOCK OPTION AGREEMENT AND GRANT
PURSUANT TO THE
SONIC AUTOMOTIVE, INC. 1997 STOCK OPTION PLAN
This Statutory Incentive Stock Option Agreement and Grant is entered
into as of {Date_Granted} between SONIC AUTOMOTIVE, INC., a Delaware
corporation (the "Company"), and {First_Name} {Last_Name} (the "Optionee").
WHEREAS, the Company and its stockholders have approved the Sonic
Automotive, Inc. 1997 Stock Option Plan (the "Plan"), pursuant to which the
Company may, from time to time, grant Options (as defined below) to and enter
into Statutory Incentive Stock Option Agreements with, eligible employees of the
Company or any Subsidiary (as defined below);
WHEREAS, pursuant to the Plan, the Company has determined to grant to
the Optionee an Option to purchase shares of Common Stock (as defined below) of
the Company, which Option shall be subject to the terms and conditions of this
Statutory Incentive Stock Option Agreement and Grant.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. Definitions. For purposes of this Statutory Incentive Stock Option
Agreement and Grant, the following terms shall have the meanings indicated:
(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" shall mean any act, action or series of acts or
actions or any omission, omissions, or series of omissions which result in, or
which have the effect of resulting in, (i) the commission of a crime by the
Optionee involving moral turpitude, which crime has a material adverse impact on
the Company or any Subsidiary or which is intended to result in the personal
enrichment of the Optionee at the expense of the Company or any Subsidiary, (ii)
a material violation of the Optionee's responsibilities, (iii) the Optionee's
gross negligence or willful misconduct, or (iv) the continuous, willful failure
of the Optionee to follow the reasonable directives of the Board.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended, any successor revenue laws of the United States and the rules and
regulations promulgated thereunder.
(e) "Committee" shall mean the committee of members of the
Board that is designated by the Board to administer the Plan. In the event that
no such Committee exists or is appointed, "Committee" shall mean the Board.
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(f) "Common Stock" shall mean the Class A Common Stock, par
value $.01 per share, of the Company.
(g) "Disability" shall mean the inability or failure of a
person to perform those duties for the Company or any Subsidiary traditionally
assigned to and performed by such person because of the person's then-existing
physical or mental condition, impairment or incapacity. The fact of disability
shall be determined by the Committee, which may consider such evidence as it
considers desirable under the circumstances, the determination of which shall be
final and binding upon all parties.
(h) "Exercise Date" shall mean the business day, during the
Option Period, upon which the Optionee delivers to the Company the written
notice and consideration contemplated by Section 5 of the Plan.
(i) "Fair Market Value" shall mean the fair market value of
the Common Stock determined as provided in the Plan.
(j) "Involuntary Termination Without Cause" shall mean either
(i) the dismissal of, or the request for the resignation of, a person, by court
order, order of any court-appointed liquidator or trustee of the Company, or the
order or request of any creditors' committee of the Company constituted under
the federal bankruptcy laws, provided that such order or request contains no
specific reference to Cause; or (ii) the dismissal of, or the request for the
resignation of, a person, by a duly constituted corporate officer of the Company
or any Subsidiary, or by the Board, for any reason other than for Cause.
(k) "Option" shall mean the option to purchase shares of
Common Stock granted to the Optionee pursuant to this Option Agreement.
(l) "Option Agreement" shall mean this Statutory Incentive
Stock Option Agreement and Grant between the Company and the Optionee by which
the Option is granted to the Optionee pursuant to the Plan.
(m) "Option Period" shall mean the period commencing from the
date of this Option Agreement and ending at the close of business ten years from
the date of this Option Agreement (or five years in the case of a Ten Percent
Shareholder) or such earlier date as when this Option Agreement may be
terminated by its terms.
(n) "Option Shares" shall mean the shares of Common Stock
purchased upon exercise of the Option.
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(o) "Optionee" shall mean the individual executing this Option
Agreement and, as applicable, the estate, personal representative, or
beneficiary to whom this Option may be transferred pursuant to this Option
Agreement by will or by the laws of descent and distribution.
(p) "Plan" shall mean the Sonic Automotive, Inc. 1997 Stock
Option Plan, as amended from time to time.
(q) "Retirement" shall mean, with respect to the Optionee,
retirement from the Company and its Subsidiaries in accordance with the
applicable retirement policy as may be in effect from time to time.
(r) "Subsidiary" shall mean any subsidiary corporation of the
Company within the meaning of Sections 424(f) and (g) of the Code.
(s) "Ten Percent Shareholder" shall mean an individual owning,
directly or by attribution as provided in Section 424(d) of the Code, on the
date of grant of the Option, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any Subsidiary.
(t) "Termination" shall mean the cessation, for any reason, of
the employer-employee relationship between the Optionee and the Company and its
Subsidiaries.
(u) "Total Option Price" shall mean the consideration payable
to the Company by the Optionee upon exercise of the Option.
2. Grant of Option. Effective upon the date hereof, and subject to the
terms and conditions set forth herein, the Company hereby grants to the Optionee
the Option to purchase from the Company, at an exercise price of $___________
per share (but not less than 100% of the Fair Market Value per share on the date
hereof, or in the case of a Ten Percent Shareholder, not less than 110% of the
Fair Market Value per share on the date hereof), up to but not exceeding in the
aggregate {M__of_Shares} shares of Common Stock.
3. Exercise of Option. The Option granted in paragraph 2 above may be
exercised as follows:
(a) The Option shall become exercisable during the Option
Period in three equal annual installments, with the Option becoming exercisable
one year from the date hereof with respect to one-third of the total number of
shares covered by the Option, and the Option becoming exercisable two years from
the date hereof with respect to another one-third of the total number of shares
covered by the Option, and the Option becoming exercisable three years from the
date hereof with
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respect to the final one-third of the total number of shares covered by the
Option; provided, however, that if the aggregate Fair Market Value of shares of
Common Stock (determined based on the per share value at the date of grant) with
respect to which this Option (together with all other incentive stock options
granted to the Optionee under all stock option plans of the Company, including
the Plan) is exercisable for the first time in any calendar year exceeds
$100,000 (or such other limit as may be in effect under Section 422(d) of the
Code), then the portion of the Option attributable to the shares with an
aggregate Fair Market Value in excess of $100,000 (or such other applicable
limit) shall not then be exercisable, or, alternatively, the Committee in its
sole and absolute discretion may elect to treat such portion as nonstatutory
stock options. In the event of the Optionee's Retirement, the Committee in its
sole and absolute discretion may accelerate the Exercise Date, which
acceleration may, in the sole and absolute discretion of the Committee, be
subject to further terms and conditions mandated by the Committee. The Option
shall terminate on the expiration of the Option Period, if not earlier
terminated.
(b) No less than 100 shares of Common Stock may be purchased
on any Exercise Date unless the number of shares purchased at such time is the
total number of shares in respect of which the Option is then exercisable.
(c) If at any time and for any reason the Option covers a
fraction of a share, then upon exercise of the Option, the Optionee shall
receive the Fair Market Value of such fractional share in cash.
(d) The Option shall be exercised by the Optionee in
accordance with the terms and conditions of Section 5 of the Plan.
(e) As soon as administratively practicable after the Exercise
Date, subject to the receipt of payment of the Total Option Price and payment of
any federal, state or local income tax withholding or other employment tax that
may be due upon the issuance of the Option Shares as determined by the Company
pursuant to paragraph 6 below, the Company shall issue to the Optionee, and the
Optionee shall become the holder of record of, the number of shares with respect
to which such Option shall be so exercised.
(f) The Option is not transferable by the Optionee otherwise
than by will or the laws of descent and distribution. No assignment or transfer
of the Option, or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise, except as described above, shall
vest in the assignee or transferee any interest or right herein whatsoever; but
immediately upon any attempt to assign or
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transfer this Option, except as expressly permitted herein, the same shall
terminate and be of no force or effect.
(g) The Optionee agrees to maintain the status of the entire
Option as an "incentive stock option" as defined under Section 422 of the Code.
In addition, the Optionee shall promptly notify the Chief Financial Officer of
the Company if the Optionee disposes of any of the Option Shares acquired
pursuant to this Option within one year of the date the Optionee exercised the
Option with respect to such Option Shares or within two years of the date of
grant of the Option. At any time during the one-year and two-year periods set
forth above, the Company may place a legend or legends on any certificate(s)
representing such Option Shares requesting the transfer agent for the Company's
Common Stock to notify the Company of any such transfers. The obligation of the
Optionee to notify the Chief Financial Officer of the Company of any such
transfer shall continue even if a legend is placed on the applicable share
certificate.
4. Termination. The Option granted hereby shall terminate and be of no
force or effect upon and following the earliest to occur of any of the following
events:
(a) The expiration of the Option Period.
(b) The Optionee's Termination for any reason other than the
Optionee's death, Disability or Involuntary Termination Without Cause.
(c) The expiration of three months after the date of the
Optionee's Involuntary Termination Without Cause. During such three-month
period, the Optionee shall have the right to exercise the Option hereby granted
in accordance with the terms of this Option Agreement, but only to the extent
the Option was exercisable on the date of the Optionee's Involuntary Termination
Without Cause.
(d) The expiration of twelve months after the Optionee's
Termination as a result of the Optionee's Disability. During such twelve-month
period, the Optionee shall have the right to exercise the Option hereby granted
in accordance with the terms of this Option Agreement, but only to the extent
the Option was exercisable on the date of the Optionee's Termination.
(e) In the event of the Optionee's Termination as a result of
the Optionee's death, or in the event of the Optionee's death after Termination
described in subparagraph (c) or (d) above but within the three-month or
twelve-month period described in subparagraph (c) or (d) above, upon the
expiration of twelve months following the Optionee's death. During such extended
period, the Option may be exercised by the person or persons to whom the
deceased Optionee's rights under the Option Agreement shall pass by will or by
the laws of descent and
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distribution, but only to the extent the Option was exercisable on the date of
the Optionee's Termination.
(f) To the extent set forth in paragraph 7 below, upon the
dissolution, liquidation, consolidation or merger of the Company, and to the
extent set forth in subparagraph 3(f) above, upon an attempted assignment or
transfer of the Option other than as expressly permitted herein.
Any determination made by the Committee with respect to any matter
referred to in this paragraph 4 shall be final and conclusive on all persons
affected thereby.
5. Rights as Stockholder. An Optionee shall have no rights as a
stockholder of the Company with respect to any shares of Common Stock underlying
the Option until the Optionee shall have become the holder of record of such
Common Stock upon payment of the Total Exercise Price in accordance with the
terms and provisions hereof. Subject to paragraph 7 below, no adjustments shall
be made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date that the Optionee shall have become the holder of record of
the shares of Common Stock acquired pursuant to the Option.
6. Payment of Withholding Taxes. Upon the Optionee's exercise of his or
her Option with respect to any of the Option Shares in accordance with the
provisions of paragraph 3 above, the Optionee shall pay to the Company, through
payroll or other withholding (which withholding the Optionee hereby authorizes)
or other means acceptable to the Company, the amount of any federal, state or
local income tax withholding or other employment tax obligations that may arise
in connection with or be due upon such exercise. The determination of the amount
of any such federal, state or local income tax withholding or other employment
tax due in such event shall be made by the Company and shall be binding upon the
Optionee. If the amount requested is not paid, the Company may refuse to issue
the Common Stock. Nothing in this paragraph shall be construed to impose on the
Company a duty to withhold where applicable law does not require such
withholding.
7. Recapitalization; Reorganization. The shares underlying this Option
are shares of Common Stock as constituted on the date of this Option Agreement,
but if, during the Option Period and prior to the delivery by the Company of all
of the shares of Common Stock with respect to which this Option is granted, the
Company shall effect a subdivision or consolidation of shares or other capital
readjustment, the payment of a stock dividend or some other increase or decrease
in the number of shares of Common Stock outstanding, without receiving
compensation therefor in money, services or property, then (a) in the event of
any increase in the number of such shares outstanding, the number of shares of
Common Stock then remaining subject to this Option shall be proportionately
increased (except that any fraction of a share resulting from any such
adjustment shall be excluded from the operation of this Option Agreement), and
the exercise price per share shall be proportionately reduced, and (b) in the
event of a reduction in the number of such shares outstanding, the number of
shares of Common Stock then remaining subject to this Option shall be
proportionately reduced (except that any
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fractional share resulting from any such adjustment shall be excluded from the
operation of this Option Agreement), and the exercise price per share shall be
proportionately increased.
In the event of a merger of one or more corporations into the Company
with respect to which the Company shall be the surviving or resulting
corporation, the Optionee shall, at no additional cost, be entitled upon any
exercise of this Option to receive (subject to any required action by
shareholders), in lieu of the number of shares as to which this Option shall
then be so exercised, the number and class of shares of stock or other
securities to which the Optionee would have been entitled pursuant to the terms
of the agreement of merger if, immediately prior to such merger, the Optionee
had been the holder of record of a number of shares of Common Stock of the
Company equal to the number of shares as to which such Option shall be so
exercised; provided, however, that, anything herein contained to the contrary
notwithstanding, upon the occurrence of any event described in Section 5(g) of
the Plan, this Option shall be subject to acceleration as provided in such
Section 5(g).
In the event of a change in the Common Stock as presently constituted,
which change is limited to a change of all of the authorized shares with par
value into the same number of shares with a different par value or without par
value, the shares resulting from any such change shall be deemed to be the
Common Stock within the meaning of the Plan.
The existence of this Option shall not affect in any way the right or
power of the Company or its shareholders to make or authorize any or all
adjustments, dividends, stock dividends, recapitalization, reorganizations or
other changes in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds, debentures, preferred or
other stocks with preference ahead of or convertible into, or otherwise
affecting, the Common Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
8. No Registration Rights. Anything in this Option Agreement to the
contrary notwithstanding, if, at any time specified herein for the issuance of
Option Shares, any law, regulation or requirements of any governmental authority
having jurisdiction in the premises shall require either the Company or the
Optionee, in the opinion of the Company's counsel, to take any action in
connection with the shares then to be issued, the issuance of such shares shall
be deferred until such action shall have been taken. Nothing in this Option
Agreement shall be construed to obligate the Company at any time to file or
maintain the effectiveness of a registration statement under the Act, or under
the securities laws of any state or other jurisdiction, or to take or cause to
be taken any action which may be necessary in order to provide an exemption from
the registration requirements of the Act under Rule 144 or any other exemption
with respect to the Option Shares or otherwise for resale or other transfer by
the Optionee (or by the executor or administrator of such Optionee's estate or a
person who acquired the Option or any Option Shares or other rights by bequest,
inheritance or otherwise by reason of the death of the Optionee) as a result of
the exercise of an Option granted pursuant to this Option Agreement.
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9. Resolution of Disputes. Any question of interpretation, dispute or
disagreement that arises under, or as a result of, or pursuant to, this Option
Agreement shall be determined by the Committee in its absolute and uncontrolled
discretion, and any such determination or other determination or interpretation
by the Committee under or pursuant to this Option Agreement, shall be final,
binding and conclusive on all parties affected thereby.
10. Compliance with the Act. Notwithstanding any provision herein to
the contrary or in the Plan, the Company shall be under no obligation to issue
any shares of Common Stock to the Optionee upon exercise of the Option granted
hereby unless and until the Company has determined that such issuance is either
exempt from registration, or is registered, under the Act and is either exempt
from registration and qualification, or is registered or qualified, as
applicable, under all applicable state securities or "blue sky" laws.
11. Miscellaneous.
(a) Binding on Successors and Representatives. This Option
Agreement shall be binding not only upon the parties, but also upon their heirs,
executors, administrators, personal representatives, successors and assigns
(including any transferee of a party to this Agreement); and the parties agree,
for themselves and their successors, assigns (including any transferee of a
party to this Agreement) and representatives, to execute any instrument which
may be necessary legally to effect the terms and conditions of this Option
Agreement.
Entire Agreement. This Option Agreement, together with the Plan, constitutes the
entire agreement of the parties with respect to the Option and supersedes any
previous agreement, whether written or oral, with respect thereto. This Option
Agreement has been entered into in compliance with the terms of the Plan;
wherever a conflict may arise between the terms of this Option Agreement and the
terms of the Plan, the terms of the Plan shall control.
Amendment. Neither this Option Agreement nor any of the terms and conditions
herein set forth may be altered or amended orally, and any such alteration or
amendment shall be effective only when reduced to writing and signed by each of
the parties or their respective successors and assigns.
Construction of Terms. Any reference herein to the singular or plural shall be
construed as plural or singular whenever the context requires.
Notices. All notices, requests and amendments under this Option Agreement shall
be in writing, and notices shall be deemed to have been given when personally
delivered or sent prepaid registered mail:
if to the Company, at the following address:
Sonic Automotive, Inc.
5401 East Independence Boulevard
P.O. Box 18747
Charlotte, North Carolina 28218
Attention: Chief Financial Officer
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or at such other address as the Company shall designate by notice.
if to the Optionee, to the Optionee's address
appearing in the Company's employment records,
or at such other address as the Optionee shall
designate by notice.
Governing Law. This Option Agreement shall be governed by, and construed in
accordance with, the laws of the State of North Carolina (excluding the
principles of conflict of laws thereof).
Severability. The invalidity or unenforceability of any particular provision of
this Option Agreement shall not affect the other provisions hereof, and this
Option Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
Incentive Stock Option. The Option granted hereunder is intended to be an
"incentive stock option" under Section 422 of the Code.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the day and year first written above.
SONIC AUTOMOTIVE, INC. OPTIONEE:{First_Name}{Last_Name}
By: (SEAL)
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