As filed with the Securities and Exchange Commission on September 16, 1996
Registration No. 333____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AUTOLEND GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3137244
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
930 WASHINGTON AVENUE
MIAMI BEACH, FLORIDA 33139
(Address of Principal Executive Offices)
---------------
AUTOLEND GROUP, INC.
STOCK OPTION AGREEMENTS
WITH STEVEN SIMON AND HELEN PORTER
(Full Title of the Plan)
STEVEN SIMON
930 WASHINGTON AVENUE
MIAMI BEACH, FLORIDA 33139
(Name and Address of Agent for Service)
(305) 673-2700
(Telephone Number, Including Area Code,
of Agent for Service)
COPIES TO:
Allan E. Reznick, Esq.
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered Share(1) Price Fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 525,000 $2.65 $1,391,250 $479.74
Stock, par shares
value $.002
per share
====================================================================================
</TABLE>
(1) Calculated, in accordance with 17 CFR 230.457(h)(1), solely for the purpose
of calculating the registration fee. The Proposed Maximum Offering Price
Per Share is based on the price at which the options may be exercised.
Page 1 of 26 Pages
Exhibit Index is located on page 7 of this document
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above.
(c) The Registrant's Registration Statement on Form 8-A, filed pursuant
to Section 12(g) of the Exchange Act, which contains a description of the Common
Stock, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby 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 hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary 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)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions), or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Amended and Restated Certificate of Incorporation
contains provisions permitted by Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in
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<PAGE>
a manner he reasonably believed to be in or not opposed to the corporation's
best interests and, with respect to any criminal action or proceedings, had no
reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify directors and/or officers in an action or suit by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the director or
officer is adjudged to be liable to the corporation. Where a director or officer
is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him or her against the expenses which
such director or officer actually and reasonably incurred.
The Registrant's Certificate of Incorporation, as amended, provides for
indemnification of directors and officers of the Registrant to the fullest
extent permitted by the DGCL. The Registrant may provide liability insurance for
each director and officer for certain losses arising from claims or charges made
against them while acting in their capacities as directors or officers of the
Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
4.1 Form of Stock Option Agreement with Steven Simon
4.2 Form of Stock Option Agreement with Helen Porter
4.3 Certificate of Incorporation of AutoLend Group,
Inc. (formerly known as CAPX Corporation) (1)
4.4 By-laws of AutoLend Group, Inc. (formerly known
as CAPX Corporation) (1)
5 Opinion of Kramer, Levin, Naftalis & Frankel
regarding legality of securities being
registered (including consent).
23.1 Consent of Independent Auditors.
23.2 Consent of Kramer, Levin, Naftalis & Frankel
(see Exhibit Number 5 above).
24 Power of Attorney (included on signature page).
- -----------
(1) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for
the year ended March 31, 1996 and incorporated herein by reference.
-3-
<PAGE>
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, 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 the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question 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.
-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, thereunto duly
authorized, in the City of Miami Beach, State of Florida on this 16th day of
September, 1996.
AUTOLEND GROUP, INC.
By: /s/ Steve Simon
------------------------------
Name: Steve Simon
Title: President and
Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steve Simon his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, 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 for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, 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 on September 9,
1996 in the capacities indicated.
Signature Title(s)
--------- --------
/s/ Steve Simon Chairman of the Board, President,
- ----------------------------------- Chief Executive Officer and Director
Steve Simon
/s/ Helen Porter Principal Financial and
- ----------------------------------- Accounting Officer
Helen Porter
/s/ Robert Granoff Director
- -----------------------------------
Robert Granoff
/s/ Drew Sakson Director
- -----------------------------------
Drew Sakson
-6-
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Sequentially Numbered Page
4.1 Form of Stock Option Agreement with Steve Simon 8
4.2 Form of Stock Option Agreement with Helen Porter 16
4.3 Certificate of Incorporation of CAPX Corporation (1)
4.4 By-laws of CAPX Corporation (1)
5 Opinion of Kramer, Levin, Naftalis 25
& Frankel regarding legality of securities
being registered (including consent).
23.1 Consent of Independent Auditors. 27
23.2 Consent of Kramer, Levin, Naftalis
& Frankel (see Exhibit Number 5 above).
24 Power of Attorney (included on signature page).
- ---------------------------------------------
(1) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for
the year ended March 31, 1996 and incorporated herein by reference.
-7-
EXHIBIT 4.1
Optionee: Steven Simon
Grant: 400,000 shares
AUTOLEND GROUP, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made and entered into as of the ___ day
of _______, 1996 (the "Agreement"), by and between AutoLend Group, Inc., a
Delaware corporation, having its principal place of business at 420 Jefferson
Avenue, Miami Beach, FL 33139 (the "Company"), and Steven Simon, an individual
residing at [address], (the "Optionee").
WHEREAS, the Optionee has agreed to serve as a consultant to the
Company pursuant to a Consulting Agreement between the Company and the Optionee
dated the date hereof.
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the adequacy and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Grant of Option. The Company hereby grants to the Optionee on the
date hereof the right and option to purchase (subject to adjustment pursuant to
Section 6 hereof) an aggregate of 400,000 of its shares of Common Stock at an
option price per share of $2.65, subject to adjustment as provided herein.
2. Option Period. The option granted hereby each shall remain in full
force and effect and be fully exercisable until 12:01 a.m. Eastern Standard Time
of the thirty-first day (the "Expiration Date") following the tenth consecutive
trading day that the Market Price (as hereinafter defined) of the Company's
Common Stock equals or exceeds $6.00 per share, and the Registration Statement
referred to in Section 8 hereof is effective, provided however, that if, on the
date the Optionee elects to exercise this Option in the manner provided herein
during the thirty-one day period as aforesaid (the "Attempted Exercise Date"),
the Registration Statement referred to in Section 8 hereof shall not be
effective or the Optionee is otherwise unable to sell his shares into the public
market because of the Company's failure to comply with any applicable laws or
regulations required hereunder, then the Expiration Date shall be adjusted such
that this Option shall expire and no longer be exercisable following the tenth
day following the fifth consecutive trading day after the Attempted Exercise
Date that the Market Price (as hereinafter defined) of the Company's Common
Stock equals or exceeds $6.00 per share provided that during each of such ten
days the Registration Statement referred to in Section 8 hereof shall be
effective or the Optionee is otherwise able to sell his shares in the public
market. "Market Price" shall mean, as of any day, the closing sales price of the
Common Stock on such day on the New York Stock Exchange or the American Stock
Exchange (or if the Common Stock shall not then be listed on either such
exchange, the closing sales price on the principal (determined by highest volume
-8-
<PAGE>
averaged for a period of twenty consecutive business days prior to the day as to
which "Market Price" is being determined) national securities exchange (as
defined in the Securities Exchange Act of 1934, as amended) on which the Common
Stock may then be listed) or, if there shall have been no sales on such exchange
or exchanges on such day, the closing sales price of the Common Stock on such
day on the NASDAQ National Market System or, if the Common Stock is not included
on the NASDAQ National Market System, the average of the bid and asked prices at
the end of such day or, if the Common Stock shall not be so listed, the average
of the bid and asked prices at the end of the day in the over-the-counter market
as reported by NASDAQ or, if the Common Stock is included on NASDAQ, as reported
by the National Quotation Bureau, Inc. or any successor organization, in each
such case, averaged for a period of 20 consecutive business days prior to the
day as to which "Market Price" is being determined.
3. Exercise of Option. (a) Prior to the Expiration Date, the right of
exercise shall be cumulative so that if this Option is exercised in part, it
shall remain exercisable, in part, with respect to all shares not so purchased
at any time prior to the Expiration Date or the earlier termination of this
option. This option may not be exercised at any time on or after the Expiration
Date.
(b) The Optionee may exercise the option (to the extent then
exercisable) by delivering to the Company a written notice duly signed by the
Optionee in the form attached hereto as Exhibit A (an "Exercise Notice") stating
the number of shares that the Optionee has elected to purchase, and accompanied
by payment (in cash or by certified check) of an amount equal to the full
purchase price for the shares to be purchased. The notice shall also contain a
statement (if required and in a form reasonably acceptable to the Company) that
the Optionee is acquiring the shares for investment only, and not with a view
toward the distribution or resale thereof, other than pursuant to an effective
registration statement under, or subject to an exemption from, the applicable
requirements of the Securities Act of 1933, as amended. Following receipt by the
Company of such notice and payment, the Company shall issue, within three (3)
business days, the shares in the name of the Optionee and deliver the
certificate therefor to the Optionee. No shares shall be issued until full
payment therefor has been made and until the Company has complied with all
requirements of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, any securities exchange on which the Company's stock
may then be listed and all applicable state laws in connection with the issuance
of the shares or the listing of the shares on said securities exchange. The
Optionee shall have none of the rights of a shareholder in respect of such
shares until they are issued. Notwithstanding anything herein to the contrary,
the Optionee and the Company currently are parties to a Voting Trust Agreement
dated of even date herewith and expiring on _____, pursuant to which all shares
of the Company's common stock now or hereafter owned by the Optionee shall be
deposited with the Voting Trustee under the Voting Trust Agreement and upon
which the Voting Trustee shall have certain rights and obligations as provided
therein. So long as the Voting Trust Agreement remains in effect, upon the
exercise of this Option in whole or in part by the Optionee, certificates
representing shares issued upon exercise of this Option shall be registered in
the name of and delivered to the Voting Trustee, and a copy of said certificates
shall be delivered to the Optionee accompanied by notice that delivery of the
original certificates was made to the Voting Trustee, provided, however, that to
the extent that simultaneously with the delivery of an Exercise Notice to the
Company the Optionee provides to the Company a Sale Affidavit (as such term is
defined in the Voting Trust Agreement), then the shares issued pursuant to such
exercise shall be issued in the name of and delivered directly by the
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<PAGE>
Company to the purchaser described in such Affidavit, and a copy of said
certificates shall be delivered to the Optionee accompanied by notice that
delivery of the original certificates was made to such Purchaser.
4. Death. The options granted hereunder shall not in any way be
affected by the death of the Optionee, and shall continue to be exercisable by
his legal representatives or beneficiaries pursuant to the terms hereof.
5. Tax Status. The Company makes no representation or warranty
whatsoever to the Optionee as to the tax consequences of the grant or exercise
of the Option or of the disposition of Shares acquired thereunder.
6. Antidilution Adjustments.
(a) Adjustment for Subdivisions or Combinations of Common Stock. In the
event the Company at any time or from time to time after the date hereof effects
a subdivision or combination of its outstanding capital stock into a greater or
lesser number of shares, then and in each such event the number of shares for
which the option is exercisable shall be proportionally increased (for
subdivisions) or decreased (for combinations). Any adjustment under this Section
6(a) shall become effective at the close of business on the date the subdivision
or combination becomes effective.
(b) Adjustment for Certain Dividends, Distributions and Common Stock
Equivalents. In the event the Company at any time or from time to time after the
date hereof shall make, issue or fix a record date for the determination of the
holders of Common Stock entitled to receive a dividend or other distribution
payable in additional shares of Common Stock or other securities or rights
("Common Stock Equivalents") convertible into or entitling the holder to receive
additional shares of Common Stock or Common Stock Equivalents, without payment
of any consideration by such holder for the additional shares of Common Stock or
the Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise), then the number of shares for which this
Option is exercisable shall be increased as of the time of such issuance, by
multiplying the number of shares for which this Option is then exercisable in
effect by a fraction,
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding or deemed to be issued and
outstanding immediately prior to the time of such issuance,
plus the number of shares of Common Stock issuable in payment
of such dividend or distribution or upon conversion or
exercise or successive conversion or exercise of such Common
Stock Equivalents; and
(ii) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such
issuance.
(c) Adjustment for Reclassification, Exchange, or Substitution. If the
Common Stock issuable upon the exercise of this Option shall be reclassified or
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a
-10-
<PAGE>
subdivision or combination of shares or stock dividend provided for above, or a
reorganization, merger, consolidation or sale of assets provided for elsewhere
in this Section 6), then and in each such event the holder of this Option shall
have the right thereafter to convert such shares into the kind and amount of
shares of stock and other securities and property receivable upon such
reorganization, reclassification, or other change, by holders of the number of
shares of Common Stock for which this Option might have been exercised
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(d) Reorganization, Mergers, Consolidations or Sales of Assets. If at
any time or from time to time there shall be a capital reorganization or the
Common Stock (other than a subdivision, combination, dividend, reclassification,
or exchange of shares provided from elsewhere in this Section), or a merger or
consolidation of the Company with or into another corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person, then, as a part of such reorganization, merger, consolidation or sale,
provision shall be made so that the holder of this Option shall thereafter be
entitled to receive upon exercise of this Option the number of shares of stock
or other securities or property of the Company or of the successor corporation
resulting from such merger or consolidation or sale, to which a holder of the
Common Stock deliverable upon exercise of this Option immediately prior to such
capital reorganization, merger, consolidation or sale would have been entitled
upon such shares' capital reorganization, merger, consolidation or sale.
(e) Adjustment of Exercise Price. Upon each adjustment of the number of
shares for which this Option is exercisable as a result of the calculations made
in this Section, this Option shall thereafter evidence the right to purchase,
the adjusted number of shares at the adjusted Exercise Price (calculated to the
nearest cent), obtained by dividing (A) the product obtained by multiplying the
exercise price in effect prior to such adjustment by (B) the number of shares
for which this Option is exercisable prior to adjustment.
(f) Reservation of Stock Issuable Upon Exercise. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the exercise of this
Option, such number of its shares of Common Stock as shall from time to time be
sufficient to effect the exercise of this Option in full. If at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the exercise of this Option in full, the Corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose.
7. Fractional Shares. No fractional shares shall be issued upon the
exercise of this Option. If a requested exercise of this Option would result in
the issuance of a fractional share of Common Stock, the Company shall, in lieu
of issuing any fractional share, pay the holder otherwise entitled to such
fraction in cash, that fraction multiplied by the Market Price on the date of
receipt by the Company of the written notice and payment in full of the exercise
price pursuant to Section 3(b).
8. Registration. The Company shall use its diligent best efforts to
register the exercise of the Option granted hereby and the resale of the Common
Stock issuable upon exercise of this Option on a registration statement, or
registration statements on Form S-3 and/or Form S-8 or such other form as shall
be appropriate and available for
-11-
<PAGE>
use to the Company, pursuant to the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (together, the "Act"), within 90
days after the execution of this Agreement, and from such time as such
registration statement shall have become effective, maintain such registration
in effect and keep available for delivery upon the exercise of the Options, a
prospectus that meets the requirements of Section 10 of the Act , and to comply
with all applicable requirements of the Securities Exchange Act of 1934, any
securities exchange on which the Company's stock may then be listed, and shall
qualify the shares for sale under applicable state securities laws; provided,
however, that the Company shall not be required to consent to general service of
process, to subject itself to taxation, to qualify to do business or to incur in
excess of $7,500.00 as a condition of qualification of the shares for sale under
state securities laws; and provided, further that the Company shall have no
obligation to register the Common Stock issuable upon exercise of this Option or
maintain the effectiveness of such registration or qualification or to keep
available a prospectus, as aforesaid, in the event that, by amendment to the Act
or otherwise, such registration or qualification or the delivery of such
prospectus is not required at the time said securities underlying this Option
are to be issued or sold; and provided further, that in the event, by amendment
to the Act or otherwise, some other or different requirement shall be imposed by
act of the Congress of the United States which shall relate to the issuance of
such Common Stock issuable upon exercise of this Option, the Company shall use
its best efforts to comply with such requirements so long as the same shall not
be more burdensome to the Company than the registration statement under the Act.
Promptly after a registration statement under the Act covering the
aforementioned Common Stock issuable upon exercise of this Option has become
effective, or such other action as contemplated hereby and as may be required
has been taken, as the case may be, the Company shall cause notice thereof or a
copy of the prospectus covering the aforementioned securities to be mailed to
the Optionee.
9. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered, if delivered in person or by
telecopy, or when deposited in the mail, if mailed by first-class mail or
express delivery service, postage or other fee prepaid, with return receipt
requested, addressed to each party hereto as follows:
(a) if to the Company:
[address]
(b) if to the Optionee:
[address]
copy to:
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<PAGE>
Either party may designate any other address to which notice shall be given, by
giving written notice to the other of such change of address.
10. Governing Law. This Agreement shall be construed and governed in
accordance with the internal laws of the State of Delaware, without regard to
principles of conflict of law. Each of the parties hereto agrees to submit to
the jurisdiction of the federal or state courts located in the County of New
Castle, State of Delaware, in any action or proceeding arising out of or
relating to this Agreement.
11. Entire Agreement. With respect to the subject matter hereof, this
Agreement contains the entire agreement between the parties, and may not be
altered or modified, except in writing and signed by the party to be charged
thereby, and supersedes any and all previous agreements between the parties.
12. Amendments, Etc. None of the terms hereof may be waived, modified
or discharged, except by an instrument in writing specifically referring to this
Agreement and signed by each of the parties hereto.
13. Severability. In the event that any provision of this Agreement
would be held to be invalid, prohibited or unenforceable for any reason unless
narrowed by construction, this Agreement shall be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drafted so as not
to be invalid, prohibited or unenforceable. If any court construes any of the
provisions of this Agreement to be unenforceable because of the duration of such
provision or the area covered thereby, such court shall have the power to reduce
the duration or area of such provision and, in its reduced form, such provision
shall then be enforceable and shall be enforced. In the event any of the
provisions contained in this Agreement should nevertheless be held to be
invalid, prohibited or unenforceable, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, administrators,
successors and assigns; provided however, that the Optionee may not assign this
Agreement without the Company's prior written consent.
15. Headings. The headings contained herein are included for
convenience of reference only and do not constitute a part of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall for all purposes constitute one
agreement, binding on each of the parties, notwithstanding that each of the
parties has not signed the same counterpart.
[Signature Page Follows]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
AUTOLEND GROUP, INC.
By:
-----------------------
Name:
Title:
STEVEN SIMON
By:
-----------------------
Name:
Title:
[Signature Page for Stock Option Agreement]
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<PAGE>
EXHIBIT A
PURCHASE FORM
(To be signed and delivered to
AUTOLEND GROUP, INC.
upon exercise of the Option)
The undersigned, the holder of the foregoing Option, hereby irrevocably
elects to exercise the purchase rights represented by such Option, and to
purchase thereunder ____ shares of Common Stock, par value $.002 of AutoLend
Group, Inc. ("Shares"), and herewith makes payment of $ ($ per share) therefor,
and requests that the Certificates for the Shares be issued in the name(s) of,
and delivered to whose address(es) is/are .
The undersigned hereby represents that the shares to be purchased upon
the exercise of this Option are being purchased for investment only, and not
with a view toward the distribution or resale thereof, other than pursuant to an
effective registration statement under, or subject to an exemption from, the
applicable requirements of the Securities Act of 1933, as amended.
The undersigned hereby agrees to remit to AutoLend Group, Inc. (the
"Corporation") an amount sufficient to satisfy the Corporation's federal, state
and local withholding tax obligations with respect to the exercise of the
Option.
- -------------------------------
Dated: , 19__
EXHIBIT 4.2
Optionee: Helen Porter
Grant: 125,000 shares
AUTOLEND GROUP, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made and entered into as of the ___ day
of ________, 1996 (the "Agreement"), by and between AutoLend Group, Inc., a
Delaware corporation, having its principal place of business at 420 Jefferson
Avenue, Miami Beach, FL 33139 (the "Company"), and Helen Porter, an individual
residing at [address], (the "Optionee").
WHEREAS, the Optionee has agreed to serve as a consultant to the
Company pursuant to a Consulting Agreement between the Company and the Optionee
dated the date hereof.
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the adequacy and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Grant of Option. The Company hereby grants to the Optionee on the
date hereof the right and option to purchase (subject to adjustment pursuant to
Section 6 hereof) an aggregate of 125,000 of its shares of Common Stock at an
option price per share of $2.65, subject to adjustment as provided herein.
2. Option Period. The option granted hereby each shall remain in full
force and effect and be fully exercisable until 12:01 a.m. Eastern Standard Time
of the thirty-first day (the "Expiration Date") following the tenth consecutive
trading day that the Market Price (as hereinafter defined) of the Company's
Common Stock equals or exceeds $6.00 per share, and the Registration Statement
referred to in Section 8 hereof is effective, provided however, that if, on the
date the Optionee elects to exercise this Option in the manner provided herein
during the thirty-one day period as aforesaid (the "Attempted Exercise Date"),
the Registration Statement referred to in Section 8 hereof shall not be
effective or the Optionee is otherwise unable to sell his shares into the public
market because of the Company's failure to comply with any applicable laws or
regulations required hereunder, then the Expiration Date shall be adjusted such
that this Option shall expire and no longer be exercisable following the tenth
day following the fifth consecutive trading day after the Attempted Exercise
Date that the Market Price (as hereinafter defined) of the Company's Common
Stock equals or exceeds $6.00 per share provided that during each of such ten
days the Registration Statement referred to in Section 8 hereof shall be
effective or the Optionee is otherwise able to sell her shares in the public
market. "Market Price" shall mean, as of any day, the closing sales price of the
Common Stock on such day on the New York Stock Exchange or the American Stock
Exchange (or if the Common Stock shall not then be listed on either such
exchange, the closing sales price on the principal (determined by highest volume
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averaged for a period of twenty consecutive business days prior to the day as to
which "Market Price" is being determined) national securities exchange (as
defined in the Securities Exchange Act of 1934, as amended) on which the Common
Stock may then be listed) or, if there shall have been no sales on such exchange
or exchanges on such day, the closing sales price of the Common Stock on such
day on the NASDAQ National Market System or, if the Common Stock is not included
on the NASDAQ National Market System, the average of the bid and asked prices at
the end of such day or, if the Common Stock shall not be so listed, the average
of the bid and asked prices at the end of the day in the over-the-counter market
as reported by NASDAQ or, if the Common Stock is included on NASDAQ, as reported
by the National Quotation Bureau, Inc. or any successor organization, in each
such case, averaged for a period of 20 consecutive business days prior to the
day as to which "Market Price" is being determined.
3. Exercise of Option. (a) Prior to the Expiration Date, the right of
exercise shall be cumulative so that if this Option is exercised in part, it
shall remain exercisable, in part, with respect to all shares not so purchased
at any time prior to the Expiration Date or the earlier termination of this
option. This option may not be exercised at any time on or after the Expiration
Date.
(b) The Optionee may exercise the option (to the extent then
exercisable) by delivering to the Company a written notice duly signed by the
Optionee in the form attached hereto as Exhibit A (an "Exercise Notice") stating
the number of shares that the Optionee has elected to purchase, and accompanied
by payment (in cash or by certified check) of an amount equal to the full
purchase price for the shares to be purchased. The notice shall also contain a
statement (if required and in a form reasonably acceptable to the Company) that
the Optionee is acquiring the shares for investment only, and not with a view
toward the distribution or resale thereof, other than pursuant to an effective
registration statement under, or subject to an exemption from, the applicable
requirements of the Securities Act of 1933, as amended. Following receipt by the
Company of such notice and payment, the Company shall issue, within three (3)
business days, the shares in the name of the Optionee and deliver the
certificate therefor to the Optionee. No shares shall be issued until full
payment therefor has been made and until the Company has complied with all
requirements of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, any securities exchange on which the Company's stock
may then be listed and all applicable state laws in connection with the issuance
of the shares or the listing of the shares on said securities exchange. The
Optionee shall have none of the rights of a shareholder in respect of such
shares until they are issued. Notwithstanding anything herein to the contrary,
the Optionee and the Company currently are parties to a Voting Trust Agreement
dated of even date herewith and expiring on _____, pursuant to which all shares
of the Company's common stock now or hereafter owned by the Optionee shall be
deposited with the Voting Trustee under the Voting Trust Agreement and upon
which the Voting Trustee shall have certain rights and obligations as provided
therein. So long as the Voting Trust Agreement remains in effect, upon the
exercise of this Option in whole or in part by the Optionee, certificates
representing shares issued upon exercise of this Option shall be registered in
the name of and delivered to the Voting Trustee, and a copy of said certificates
shall be delivered to the Optionee accompanied by notice that delivery of the
original certificates was made to the Voting Trustee, provided, however, that to
the extent that simultaneously with the delivery of an Exercise Notice to the
Company the Optionee provides to the Company a Sale Affidavit (as such term is
defined in the Voting Trust Agreement), then the shares issued
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pursuant to such exercise shall be issued in the name of and delivered directly
by the Company to the purchaser described in such Affidavit, and a copy of said
certificates shall be delivered to the Optionee accompanied by notice that
delivery of the original certificates was made to such Purchaser.
4. Death. The options granted hereunder shall not in any way be
affected by the death of the Optionee, and shall continue to be exercisable by
his legal representatives or beneficiaries pursuant to the terms hereof.
5. Tax Status. The Company makes no representation or warranty
whatsoever to the Optionee as to the tax consequences of the grant or exercise
of the Option or of the disposition of Shares acquired thereunder.
6. Antidilution Adjustments.
(a) Adjustment for Subdivisions or Combinations of Common Stock. In the
event the Company at any time or from time to time after the date hereof effects
a subdivision or combination of its outstanding capital stock into a greater or
lesser number of shares, then and in each such event the number of shares for
which the option is exercisable shall be proportionally increased (for
subdivisions) or decreased (for combinations). Any adjustment under this Section
6(a) shall become effective at the close of business on the date the subdivision
or combination becomes effective.
(b) Adjustment for Certain Dividends, Distributions and Common Stock
Equivalents. In the event the Company at any time or from time to time after the
date hereof shall make, issue or fix a record date for the determination of the
holders of Common Stock entitled to receive a dividend or other distribution
payable in additional shares of Common Stock or other securities or rights
("Common Stock Equivalents") convertible into or entitling the holder to receive
additional shares of Common Stock or Common Stock Equivalents, without payment
of any consideration by such holder for the additional shares of Common Stock or
the Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise), then the number of shares for which this
Option is exercisable shall be increased as of the time of such issuance, by
multiplying the number of shares for which this Option is then exercisable in
effect by a fraction,
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding or deemed to be issued and
outstanding immediately prior to the time of such issuance, plus
the number of shares of Common Stock issuable in payment of such
dividend or distribution or upon conversion or exercise or
successive conversion or exercise of such Common Stock
Equivalents; and
(ii) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding or deemed to be issued and
outstanding immediately prior to the time of such issuance.
(c) Adjustment for Reclassification, Exchange, or Substitution. If
the Common Stock issuable upon the exercise of this Option shall
be reclassified or
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changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation or sale of assets
provided for elsewhere in this Section 6), then and in each such event the
holder of this Option shall have the right thereafter to convert such shares
into the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification, or other change, by
holders of the number of shares of Common Stock for which this Option might have
been exercised immediately prior to such reorganization, reclassification, or
change, all subject to further adjustment as provided herein.
(d) Reorganization, Mergers, Consolidations or Sales of Assets. If at
any time or from time to time there shall be a capital reorganization or the
Common Stock (other than a subdivision, combination, dividend, reclassification,
or exchange of shares provided from elsewhere in this Section), or a merger or
consolidation of the Company with or into another corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person, then, as a part of such reorganization, merger, consolidation or sale,
provision shall be made so that the holder of this Option shall thereafter be
entitled to receive upon exercise of this Option the number of shares of stock
or other securities or property of the Company or of the successor corporation
resulting from such merger or consolidation or sale, to which a holder of the
Common Stock deliverable upon exercise of this Option immediately prior to such
capital reorganization, merger, consolidation or sale would have been entitled
upon such shares' capital reorganization, merger, consolidation or sale.
(e) Adjustment of Exercise Price. Upon each adjustment of the number of
shares for which this Option is exercisable as a result of the calculations made
in this Section, this Option shall thereafter evidence the right to purchase,
the adjusted number of shares at the adjusted Exercise Price (calculated to the
nearest cent), obtained by dividing (A) the product obtained by multiplying the
exercise price in effect prior to such adjustment by (B) the number of shares
for which this Option is exercisable prior to adjustment.
(f) Reservation of Stock Issuable Upon Exercise. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the exercise of this
Option, such number of its shares of Common Stock as shall from time to time be
sufficient to effect the exercise of this Option in full. If at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the exercise of this Option in full, the Corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose.
7. Fractional Shares. No fractional shares shall be issued upon the
exercise of this Option. If a requested exercise of this Option would result in
the issuance of a fractional share of Common Stock, the Company shall, in lieu
of issuing any fractional share, pay the holder otherwise entitled to such
fraction in cash, that fraction multiplied by the Market Price on the date of
receipt by the Company of the written notice and payment in full of the exercise
price pursuant to Section 3(b).
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8. Registration. The Company shall use its diligent best efforts to
register the exercise of the Option granted hereby and the resale of the Common
Stock issuable upon exercise of this Option on a registration statement, or
registration statements on Form S-3 and/or Form S-8 or such other form as shall
be appropriate and available for use to the Company, pursuant to the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder
(together, the "Act"), within 90 days after the execution of this Agreement, and
from such time as such registration statement shall have become effective,
maintain such registration in effect and keep available for delivery upon the
exercise of the Options, a prospectus that meets the requirements of Section 10
of the Act , and to comply with all applicable requirements of the Securities
Exchange Act of 1934, any securities exchange on which the Company's stock may
then be listed, and all applicable state laws; provided however, that the
Company shall have no obligation to register the Common Stock issuable upon
exercise of this Option or maintain the effectiveness of such registration or
qualification or to keep available a prospectus, as aforesaid, in the event
that, by amendment to the Act or otherwise, such registration or qualification
or the delivery of such prospectus is not required at the time said securities
underlying this Option are to be issued or sold; and provided further, that in
the event, by amendment to the Act or otherwise, some other or different
requirement shall be imposed by act of the Congress of the United States which
shall relate to the issuance of such Common Stock issuable upon exercise of this
Option, the Company shall use its best efforts to comply with such requirements
so long as the same shall not be more burdensome to the Company than the
registration statement under the Act. Promptly after a registration statement
under the Act covering the aforementioned Common Stock issuable upon exercise of
this Option has become effective, or such other action as contemplated hereby
and as may be required has been taken, as the case may be, the Company shall
cause notice thereof or a copy of the prospectus covering the aforementioned
securities to be mailed to the Optionee.
9. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered, if delivered in person or by
telecopy, or when deposited in the mail, if mailed by first-class mail or
express delivery service, postage or other fee prepaid, with return receipt
requested, addressed to each party hereto as follows:
(a) if to the Company:
[address]
(b) if to the Optionee:
[address]
copy to:
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Either party may designate any other address to which notice shall be given, by
giving written notice to the other of such change of address.
10. Governing Law. This Agreement shall be construed and governed in
accordance with the internal laws of the State of Delaware, without regard to
principles of conflict of law. Each of the parties hereto agrees to submit to
the jurisdiction of the federal or state courts located in the County of New
Castle, State of Delaware, in any action or proceeding arising out of or
relating to this Agreement.
11. Entire Agreement. With respect to the subject matter hereof, this
Agreement contains the entire agreement between the parties, and may not be
altered or modified, except in writing and signed by the party to be charged
thereby, and supersedes any and all previous agreements between the parties.
12. Amendments, Etc. None of the terms hereof may be waived, modified
or discharged, except by an instrument in writing specifically referring to this
Agreement and signed by each of the parties hereto.
13. Severability. In the event that any provision of this Agreement
would be held to be invalid, prohibited or unenforceable for any reason unless
narrowed by construction, this Agreement shall be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drafted so as not
to be invalid, prohibited or unenforceable. If any court construes any of the
provisions of this Agreement to be unenforceable because of the duration of such
provision or the area covered thereby, such court shall have the power to reduce
the duration or area of such provision and, in its reduced form, such provision
shall then be enforceable and shall be enforced. In the event any of the
provisions contained in this Agreement should nevertheless be held to be
invalid, prohibited or unenforceable, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, administrators,
successors and assigns; provided however, that the Optionee may not assign this
Agreement without the Company's prior written consent.
15. Headings. The headings contained herein are included for
convenience of reference only and do not constitute a part of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall for all purposes constitute one
agreement, binding on each of the parties, notwithstanding that each of the
parties has not signed the same counterpart.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
AUTOLEND GROUP, INC.
By:
-----------------------
Name:
Title:
HELEN PORTER
By:
-----------------------
Name:
Title:
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EXHIBIT A
PURCHASE FORM
(To be signed and delivered to AUTOLEND
GROUP, INC.
upon exercise of the Option)
The undersigned, the holder of the foregoing Option, hereby irrevocably
elects to exercise the purchase rights represented by such Option, and to
purchase thereunder ____ shares of Common Stock, par value $.002 of AutoLend
Group, Inc. ("Shares"), and herewith makes payment of $ ($ per share) therefor,
and requests that the Certificates for the Shares be issued in the name(s) of,
and delivered to whose address(es) is/are .
The undersigned hereby represents that the shares to be purchased upon
the exercise of this Option are being purchased for investment only, and not
with a view toward the distribution or resale thereof, other than pursuant to an
effective registration statement under, or subject to an exemption from, the
applicable requirements of the Securities Act of 1933, as amended.
The undersigned hereby agrees to remit to AutoLend Group, Inc. (the
"Corporation") an amount sufficient to satisfy the Corporation's federal, state
and local withholding tax obligations with respect to the exercise of the
Option.
- -------------------------------
Dated: , 19__
EXHIBIT 5
Kramer, Levin, Naftalis & Frankel
919 THIRD AVENUE
NEW YORK, N.Y. 10022 - 3852
(212) 715 - 9100
Arthur H. Aufses III Richard Marlin Sherwin Kamin
Thomas D. Balliett Thomas E. Molner Arthur B. Kramer
Jay G. Baris Thomas H. Moreland Maurice N. Nessen
Saul E. Burian Ellen R. Nadler Founding Partners
Barry Michael Cass Gary P. Naftalis Counsel
Thomas E. Constance Michael J. Nassau --------
Michael J. Dell Michael S. Nelson Martin Balsam
Kenneth H. Eckstein Jay A. Neveloff Joshua M. Berman
Charlotte M. Fischman Michael S.oberman Jules Buchwald
David S. Frankel Paul S. Pearlman Rudolph De Winter
Marvin E. Frankel Susan J. Penry-williams Meyer Eisenberg
Alan R. Friedman Bruce Rabb Arthur D. Emil
Carl Frischling Allan E. Reznick Maxwell M. Rabb
Mark J. Headley Scott S. Rosenblum James Schreiber
Robert M. Heller Michele D. Ross Counsel
Philip S. Kaufman Max J. Schwartz -------
Peter S. Kolevzon Mark B. Segall M. Frances Buchinsky
Kenneth P. Kopelman Judith Singer Debora K. Grobman
Michael Paul Korotkin Howard A. Sobel Christian S. Herzeca
Kevin B. Leblang Steven C. Todrys Pinchas Mendelson
David P. Levin Jeffrey S. Trachtman Lynn R. Saidenberg
Ezra G. Levin D. Grant Vingoe Jonathan M. Wagner
Larry M. Loeb Harold P. Weinberger Special Counsel
Monica C. Lord E. Lisk Wyckoff, Jr. -------
FAX
(212) 715-8000
---
WRITER'S DIRECT NUMBER
(212)715-9100
-------------
September 16, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to AutoLend Group, Inc., a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 525,000 shares (the "Shares") of common stock, par value $.002 per
share, to be issued pursuant to option agreements with each of Steve Simon and
Helen Porter (together, the "Plan").
In connection with the registration of the Shares, we have reviewed
copies of the Registration Statement, the Plan, the Certificate of
Incorporation, as amended, and the By-laws of the Registrant, and such documents
and records as we have deemed necessary to enable us to express an opinion on
the matters covered hereby.
<PAGE>
KRAMER, LEVIN, NAFTALIS & FRANKEL
September 16, 1996
Page 2
We have also examined and relied upon representations, statements, or
certificates of public officials and officers and representatives of the
Registrant.
Based upon the foregoing, we are of the opinion that, following the due
execution and delivery of the agreements constituting the Plan, the Shares
covered by the Registration Statement, upon payment therefor in accordance with
the terms of the Plan and the performance of the parties' obligations
thereunder, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
We are delivering this opinion to the Registrant, and no person other
than the Registrant may rely upon it.
Very truly yours,
/s/ Kramer, Levin, Naftalis & Frankel
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of AutoLend Group, Inc. on Form S-8 of our report dated July 16, 1996,
appearing in the Annual Report on Form 10-K of AutoLend Group, Inc. for the year
ended March 31, 1996.
/S/ DELOITTE & TOUCHE LLP
Miami, Florida
September 12, 1996
