<PAGE> 1
As filed with the Securities and Exchange Commission on September 26, 1997.
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
--------------------
AMERICAN HOMESTAR CORPORATION
(Exact name of registrant as specified in its charter)
Texas 76-0070846
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2450 South Shore Boulevard, Suite 300
League City, Texas 77573
(Address of principal executive offices) (Zip Code)
--------------------
AMERICAN HOMESTAR CORPORATION
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT--JOAN VICKERY
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT--JIMMY TYRA
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT--VERNON BERRY
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT--MIKE TERRIAN
(Full title of the Plans)
Craig A. Reynolds
2450 South Shore Boulevard, Suite 300
League City, Texas 77573
(Name and address of agent for service)
(281) 334-9700
(Telephone number, including
area code, of agent for service)
--------------------
COPIES TO:
Richard F. Dahlson
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share(1) Price Registration Fee
============================================================================================================
<S> <C> <C> <C> <C>
Common Stock, 823 shares $9.11 $7,587.53 $2.30
par value $.05 2,058 shares $9.11 $18,748.38 $5.68
per share 2,058 shares $9.11 $18,748.38 $5.68
8,232 shares $12.15 $100,018.80 $30.31
Total:$43.97
============================================================================================================
</TABLE>
(1) Computed pursuant to Rule 457 for the purpose of calculating the
registration fee, based upon the price at which the options may be
exercised.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION BY REFERENCE. The following documents, which have been
filed with the Commission by the Company, are incorporated herein by reference
and made a part hereof:
(i) The Company's latest annual report on Form 10-K for
the year ended May 31, 1997 (the "Annual Report");
(ii) All other reports filed with the Commission pursuant
to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, since the end of the fiscal
year covered by the Annual Report; and
(iii) The description of the Company's Common Stock
contained in the Company's Registration Statement on
Form 8-A (No. 0-24210) filed May 5, 1994.
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 Prospectus and
prior to the termination of the offering of the Common Stock to be made
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a
copy of this Prospectus is delivered, upon the written or oral request of such
person, a copy of any and all of the documents incorporated herein by reference
(other than exhibits to such documents unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests for such documents should be
directed to American Homestar Corporation, 2450 South Shore Boulevard, Suite
300, League City, Texas 77573, Attention: Craig A. Reynolds, Executive Vice
President (telephone: (281) 334-9700).
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS. Not applicable.
II-2
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company's Restated
Articles of Incorporation (the "Charter") provides that, to the fullest extent
permitted by the Texas Business Corporation Act (the "TBCA"), directors of the
Company will not be liable to the Company or its shareholders for monetary
damages for breach of fiduciary duty as director. Texas law does not currently
authorize the elimination or limitation of the liability of a director to the
extent the director is found liable for (i) any breach of the director's duty
of loyalty to the Company or its shareholders, (ii) acts or omissions not in
good faith that constitute a breach of duty of the director of the Company or
which involve intentional misconduct or a knowing violation of law, (iii)
transactions from which the director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the
director's office, or (iv) acts or omissions for which the liability of a
director is expressly provided by law. In addition, the Company's Charter
provides that if the TBCA is amended to authorize the further elimination or
limitation of the liability of a director, then the liability of the directors
will be eliminated or limited to the fullest extent permitted by the TBCA, as
amended.
The Charter and the Amended and Restated Bylaws of the Company grant
mandatory indemnification to directors and officers of the Company to the
fullest extent authorized under the TBCA. In general, a Texas corporation may
indemnify a director or officer who was, is or is threatened to be made a named
defendant or respondent in a proceeding by virtue of his position in the
corporation 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, in the case
of criminal proceedings, had no reasonable cause to believe his conduct was
unlawful. A Texas corporation may indemnify a director or officer in an action
brought by or in the right of the corporation only if such director or officer
was not found liable to the corporation, unless or only to the extent that a
court finds him to be fairly and reasonably entitled to indemnify for such
expenses as the court deems proper.
The Company has entered into indemnity agreements with Messrs. Teeter,
Dawson, Reynolds, Carney, Holland, Fallon, Hunt and McDonald. Pursuant to such
agreements, the Company will, to the extent permitted by applicable law,
indemnify such persons against all expenses, judgments, fines and penalties
incurred in connection with the defense or settlement of any actions brought
against them by reason of the fact that they were directors or officers of the
Company or assumed certain responsibilities at the direction of the Company.
The form of indemnity agreements offer substantially the same scope of coverage
afforded by provisions in the Company's Charter and Amended and Restated
Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
II-3
<PAGE> 4
ITEM 8. EXHIBITS. The following is a list of all exhibits filed as a part of
this Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit No. Description of Exhibit
4 .1 Restated Articles of Incorporation. (1)
4 .2 Amended and Restated Bylaws. (1)
4 .3 Replacement Incentive Option Agreement, dated June 5, 1997, by
and between American Homestar Corporation and Joan Vickery.
(2)
4 .4 Replacement Incentive Option Agreement dated June 5, 1997, by
and between American Homestar Corporation and Jimmy Tyra.(2)
4 .5 Replacement Incentive Option Agreement dated June 5, 1997, by
and between American Homestar Corporation and Vernon Berry.(2)
4 .6 Replacement Incentive Option Agreement dated June 5, 1997, by
and between American Homestar Corporation and Mike Terrian.
(2)
5 .1 Opinion of Jackson Walker L.L.P.(2)
23.1 Consent of Jackson Walker L.L.P.(3)
23.2 Consent of KPMG Peat Marwick LLP.(2)
24.1 Power of Attorney.(4)
- --------------
(1) Previously filed as an exhibit to the Company's registration statement
on Form S-1 (No. 33-78630) and incorporated by reference.
(2) Filed herewith.
(3) Included in the opinion of Jackson Walker L.L.P., filed herewith.
(4) Appearing on the signature page of this registration statement.
II-4
<PAGE> 5
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are incorporated by reference in this
Registration Statement.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
II-5
<PAGE> 6
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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in 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 its is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-6
<PAGE> 7
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
each of Laurence A. Dawson and Finis F. Teeter as his true and lawful
attorney-in-fact and agent, each acting alone, with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective 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 such attorneys-in- fact and agents, each acting
alone, 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 do in person, hereby ratifying and confirming
all that such attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Arlington, State of
Texas, on the 26th day of September, 1997.
AMERICAN HOMESTAR CORPORATION
By /s/ LAURENCE A. DAWSON, JR.
-----------------------------------------
Laurence A. Dawson, Jr.
President and Co-Chief Executive Officer
II-7
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities indicated and on September 26, 1997.
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
/s/ FINIS F. TEETER Chairman of the Board,
- ------------------------------------------------ Co-Chief Executive Officer and Director
Finis F. Teeter (Principal Executive Officer)
/s/ LAURENCE A. DAWSON, JR. President, Co-Chief Executive Officer and Director
- ------------------------------------------------ (Principal Executive Officer)
Laurence A. Dawson, Jr.
/s/ CRAIG A. REYNOLDS Executive Vice President, Chief Financial Officer,
- ------------------------------------------------ Secretary and Director
Craig A. Reynolds (Principal Financial and Accounting Officer)
/s/ JACKIE H. HOLLAND Vice President, Treasurer and Director
- ------------------------------------------------
Jackie H. Holland
/s/ CHARLES N. CARNEY Vice President and Director
- ------------------------------------------------
Charles N. Carney
/s/ JAMES J. FALLON Vice President and Director
- ------------------------------------------------
James J. Fallon
/s/ WILLIAM O. HUNT Director
- ------------------------------------------------
William O. Hunt
/s/ JACK L. MCDONALD Director
- ------------------------------------------------
Jack L. McDonald
</TABLE>
II-8
<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<S> <C>
4.1 Restated Articles of Incorporation.(1)
4.2 Amended and Restated Bylaws.(1)
4.3 Replacement Incentive Option Agreement dated June 5, 1997, by and between American Homestar Corporation
and Joan Vickery.(2)
4.4 Replacement Incentive Option Agreement dated June 5, 1997, by and between American Homestar Corporation
and Jimmy Tyra.(2)
4.5 Replacement Incentive Option Agreement dated June 5, 1997, by and between American Homestar Corporation
and Vernon Berry.(2)
4.6 Replacement Incentive Option Agreement dated June 5, 1997, by and between American Homestar Corporation
and Mike Terrian.(2)
5.1 Opinion of Jackson Walker L.L.P.(1)
23.1 Consent of Jackson Walker L.L.P.(2)
23.2 Consent of KPMG Peat Marwick LLP.(1)
24.1 Power of Attorney.(4)
</TABLE>
- --------------
(1) Previously filed as an exhibit to the Company's registration statement
on Form S-1 (No. 33-78630) and incorporated by reference.
(2) Filed herewith.
(3) Included in the opinion of Jackson Walker L.L.P., filed herewith.
(4) Appearing on the signature page of this Registration Statement.
<PAGE> 1
EXHIBIT 4.3
AMERICAN HOMESTAR CORPORATION
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT
THIS REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT (this "Agreement")
is made and entered into as of the 5th day of June, 1997, between American
Homestar Corporation, a Texas corporation (the "Company"), and Joan Vickery
(the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has entered into that certain Securities Purchase
Agreement by and among the Company, Brilliant Holding Corporation ("Brilliant")
and the holders of all of the outstanding securities of Brilliant, dated as of
March 6, 1997, as amended by the First Amendment to the Securities Purchase
Agreement by the Company, Brilliant and the holders of all of the outstanding
securities of Brilliant, dated June 5, 1997 (the "Acquisition Agreement");
WHEREAS, under the Acquisition Agreement the securityholders of
Brilliant will receive in exchange for their securities (or in exchange for the
termination of their securities) of Brilliant, shares, or in the case of
optionholders, options to acquire shares, of the common stock, par value $0.05
per share, of the Company ("Company Common Stock"), (which shares and options
to acquire shares of Company Common Stock in the aggregate will equal 500,000
shares of Company Common Stock; and
WHEREAS, the Optionee held incentive stock options (the "Old Options")
to acquire a certain number of shares of Brilliant and pursuant to the terms of
the Acquisition Agreement, the Company desires to grant, and the Optionee
desires to receive, options to acquire a certain number of shares of Company
Common Stock as set forth below (the "New Options") in substitution for the Old
Options, which Old Options shall terminate under the terms of this Agreement;
WHEREAS, the number of shares of Company Common Stock subject to the
New Options was determined according to the same ratio as that used to
determine the number of shares of Company Common Stock payable for each share
of Brilliant under the Acquisition Agreement; and
WHEREAS, the parties desire that the substitution of the New Options
for the Old Options qualify as a substitution of new options to which Section
424(a) of the Internal Revenue Code of 1986, as amended, applies;
NOW, THEREFORE, in consideration of these premises and the covenants
contained in the Acquisition Agreement, the parties agree that the following
shall constitute the Agreement between the Company and the Optionee:
1. Grant of Option. Subject to the terms and conditions set
forth in this Agreement, the Company hereby grants to the Optionee the option
(the "Option") to purchase from the Company during the period ending December
31, 1998, 823 shares of Common Stock at a price of $9.11 per share. This
Option is immediately exercisable upon the Closing (as defined in the
Acquisition
<PAGE> 2
Agreement) and upon such Closing, the Old Options will immediately terminate
and be of no further force or effect.
This option shall terminate as of the date the Optionee ceases to be
an employee of the Company or a subsidiary of the Company. Notwithstanding the
foregoing, if the Optionee retires with the consent of the Company or a
subsidiary of the Company, this Option shall terminate three (3) months after
retirement, except as provided in the following sentence. If the Optionee
shall die while he is an employee of the Company or a subsidiary of the
Company, or within three (3) months after retirement with the consent of the
Company or a subsidiary of the Company, this Option may be exercised (to the
extent the Optionee would have been entitled to do so) by a legatee(s) of the
Optionee under his last will, or by a personal representative(s), at any time
within one (1) year after the earlier of death or retirement by consent.
2. Notice of Exercise. This Option may be exercised, in whole or
in part, from time to time, in accordance with the provisions of this
paragraph, by written notice to the Compensation Committee of the Board of
Directors of the Company (the "Committee") at the address provided below, which
notice shall:
(a) specify the number of whole shares of Common Stock to
be purchased and the exercise price to be paid
therefor;
(b) if the person exercising this Option is not the
Optionee, contain or be accompanied by evidence
satisfactory to the Committee of such person's right
to exercise this Option;
(c) state that it is the Optionee's present intention to
acquire the shares being purchased for investment and
not for resale; and
(d) be accompanied by payment in full of the exercise
price in the form of cash or by certified or
cashier's check payable to the order of the Company
or, with the consent of the Committee, with shares of
Common Stock owned by the Optionee or by a
combination of cash and such shares. In the event
that shares of Common Stock are used as partial or
full payment, each share shall be valued at the Fair
Market Value (as defined below) thereof on the date
of exercising the Option.
For purposes of this Agreement, "Fair Market Value" of shares of
Common Stock shall be determined in good faith by the Committee, provided that
(i) if the shares are actively traded on any national securities exchange or
reported by NASDAQ on a basis which reports closing sales prices, Fair Market
Value shall be the closing sales price per share of the shares for the business
day immediately preceding the valuation date; (ii) if the shares are otherwise
traded over the counter, Fair Market Value shall be the arithmetic mean of the
bid and asked prices for the shares, as reported by NASDAQ, for the business
day immediately preceding the valuation date; and (iii) if the shares are not
traded, Fair Market Value shall be determined by the Committee which shall, in
making such
2
<PAGE> 3
determination, consider, where applicable, among other factors, the existence
and extent of a private market for the shares and a public market for the
Company's securities of the same class, if any; the price at which the shares
were acquired, if applicable, by the Company; the estimated period of time, if
any, during which the shares will be freely marketable; the estimated amount of
floating supply of shares available; changes in the financial condition and
prospects of the Company; the existence of merger proposals or payment of a
stock dividend on the shares, a subdivision or combination of shares, a
reclassification of the shares, a merger or consolidation, or other like
changes in the shares.
3. Exercise of Option. The Optionee represents that the shares
of Common Stock acquired upon exercise of this Option shall be acquired for the
Optionee's own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the "Act"), or other
applicable federal or state securities laws. If the Committee so determines,
any certificates for shares issued upon exercise of this Option shall bear a
legend to the effect that the shares have been so acquired. The Company may,
but in no event shall be required to, bear any expenses of complying with the
Act, other applicable securities laws, or the rules and regulations of any
national securities exchange or other regulatory authority in connection with
the registration, qualification or transfer, as the case may be, of any shares
of Common Stock acquired upon the exercise of this Option. The foregoing
representation and restrictions on the transfer of the shares of Common Stock
shall be inoperative if (a) the Company has been previously furnished with an
opinion of counsel, satisfactory to it, to the effect that such transfer will
not involve any violation of the Act or other applicable federal or state
securities laws, or (b) the shares have been fully registered in compliance
with the Act and other applicable securities laws.
4. Adjustments. After any merger of one or more corporations
into the Company, any merger of the Company into another corporation, any
consolidation of the Company as a party thereto involving any exchange,
conversion, adjustment or other modification of the outstanding shares of
Common Stock, Optionee shall, at no additional cost, be entitled, upon any
exercise of his Option, to receive (subject to any required action by
stockholders), in lieu of the number of shares of Common Stock as to which the
Option shall then be so exercised, the number and class of shares of stock or
other securities or any other property to which the Optionee would have been
entitled pursuant to the terms of the agreement of merger, consolidation, or
other reorganization, if, at the time of the merger, consolidation or other
reorganization, the Optionee had been a holder of record of the number of
shares of Common Stock equal to the number of shares of Common Stock as to
which the Option shall then be so exercised. Comparable rights shall accrue to
Optionee in the event of successive mergers, consolidations or reorganization
of the character described above. The foregoing adjustments and the manner of
application of the foregoing provision shall be determined by the Committee in
its sole discretion. Any adjustment may provide for the elimination of any
fractional share of Common Stock which might otherwise become subject to an
Option.
5. Transferability of Option. This Option shall not be
transferable except by will or by the laws of descent and distribution. During
the Optionee's lifetime, this Option may be exercised only by the Optionee or
by the Optionee's guardian or legal representative. No assignment or transfer
of this Option, whether voluntary or involuntary, by operation of law or
otherwise, except a transfer
3
<PAGE> 4
by will or by the laws of descent or distribution, shall vest in the assignee
or transferee any interest or right whatsoever in this Option.
6. No Rights as Stockholder. The Optionee shall not be deemed a
stockholder of the Company with respect to any of the shares of Common Stock
subject to this Option, except to the extent that such shares shall have been
purchased and transferred to the Optionee. The Company shall not be required
to issue or transfer any certificates for shares of Common Stock purchased upon
exercise of this Option until all applicable requirements of law have been
complied with and such shares shall have been duly qualified for trading or
listed on any quotations system or securities exchange on which the shares of
Common Stock may then be trading or listed.
7. Limitation on Rights. This Option shall not confer on the
Optionee any right to continue as an employee of the Company or a subsidiary of
the Company or affect the Company's or any subsidiary's right to terminate the
Optionee's service at any time, and nothing contained herein shall be deemed a
waiver or modification of any provision contained in any agreement between the
Optionee and the Company or a subsidiary of the Company. This Option shall not
affect the right of the Company or any subsidiary thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup or
otherwise reorganize.
8. Committee's Powers. The Committee shall have the powers to
construe the terms of this Agreement and to make all other determinations and
perform all other acts as necessary or advisable for administering the terms
hereof. Any determination made by the Committee shall be final, binding and
conclusive on the Optionee.
9. Restrictions on Shares. At any time the shares of Common
Stock are not actively traded on any national securities exchange, on NASDAQ,
or otherwise over the counter, the Company reserves to itself or its assignee
(a) the right of first refusal to purchase shares of Common Stock issued
pursuant to this Option (the "Option Shares"), or any portion thereof, that an
Optionee (or a subsequent transferee) may propose to transfer to a third party,
and (b) the right to repurchase all Option Shares, or any portion thereof, held
by an Optionee upon the Optionee's termination of employment with the Company
or of any subsidiary thereof for any reason whatsoever. The purchase shall be
completed within fifteen (15) days of the date the Company sends notice that it
will exercise its right to purchase the Option Shares, or within three (3)
months and fifteen (15) days of the date of termination of employment. The
price to be paid for the Option Shares shall be their Fair Market Value on the
date of purchase by the Company, or its assignee. Payment shall be made in
cash on the date of the purchase unless the Optionee and Company shall agree
otherwise.
10. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date which it is personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance
4
<PAGE> 5
herewith. The Committee or Optionee may change, at any time and from time to
time, by written notice to the other, the address previously specified for
receiving notices. Until changed in accordance herewith, the Committee and the
Optionee specify their respective addresses as set forth below:
Committee: Compensation Committee
American Homestar Corporation
2221 East Lamar Boulevard, Suite 790
Arlington, Texas 76006-7422
Optionee: Joan Vickery
Brilliant Plant
Highway 129 North
Brilliant, AL 33548
11. Headings. The titles and headings of the paragraphs are
included for convenience or reference only and are not to be considered in
constriction of the provisions hereof.
12. Entire Agreement and Amendments. This Agreement embodies the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes any prior arrangements and understandings
relating to the subject matter hereof. This Agreement may be amended, modified
or superseded, and any of the terms and provisions hereof may be waived, but
only by a written instrument executed by the parties hereto.
13. Governing Law. All questions arising with respect to the
provisions of this Option shall be determined by application of the laws of the
State of Texas.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first set forth written.
THE COMPANY: AMERICAN HOMESTAR
CORPORATION
By:/s/ Laurence A. Dawson, Jr.
---------------------------------------
Its: President
--------------------------------------
THE OPTIONEE: /s/ Joan Vickery
------------------------------------------
Joan Vickery
6
<PAGE> 1
EXHIBIT 4.4
AMERICAN HOMESTAR CORPORATION
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT
THIS REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT (this "Agreement")
is made and entered into as of the 5th day of June, 1997, between American
Homestar Corporation, a Texas corporation (the "Company"), and Jimmy Tyra (the
"Optionee").
W I T N E S S E T H:
WHEREAS, the Company has entered into that certain Securities Purchase
Agreement by and among the Company, Brilliant Holding Corporation ("Brilliant")
and the holders of all of the outstanding securities of Brilliant, dated as of
March 6, 1997, as amended by the First Amendment to the Securities Purchase
Agreement by the Company, Brilliant and the holders of all of the outstanding
securities of Brilliant, dated June 5, 1997 (the "Acquisition Agreement");
WHEREAS, under the Acquisition Agreement the securityholders of
Brilliant will receive in exchange for their securities (or in exchange for the
termination of their securities) of Brilliant, shares, or in the case of
optionholders, options to acquire shares, of the common stock, par value $0.05
per share, of the Company ("Company Common Stock"), (which shares and options
to acquire shares of Company Common Stock in the aggregate will equal 500,000
shares of Company Common Stock; and
WHEREAS, the Optionee held incentive stock options (the "Old Options")
to acquire a certain number of shares of Brilliant and pursuant to the terms of
the Acquisition Agreement, the Company desires to grant, and the Optionee
desires to receive, options to acquire a certain number of shares of Company
Common Stock as set forth below (the "New Options") in substitution for the Old
Options, which Old Options shall terminate under the terms of this Agreement;
WHEREAS, the number of shares of Company Common Stock subject to the
New Options was determined according to the same ratio as that used to
determine the number of shares of Company Common Stock payable for each share
of Brilliant under the Acquisition Agreement; and
WHEREAS, the parties desire that the substitution of the New Options
for the Old Options qualify as a substitution of new options to which Section
424(a) of the Internal Revenue Code of 1986, as amended, applies;
NOW, THEREFORE, in consideration of these premises and the covenants
contained in the Acquisition Agreement, the parties agree that the following
shall constitute the Agreement between the Company and the Optionee:
1. Grant of Option. Subject to the terms and conditions set
forth in this Agreement, the Company hereby grants to the Optionee the option
(the "Option") to purchase from the Company during the period ending December
31, 1998, 2,058 shares of Common Stock at a price of $9.11 per share. This
Option is immediately exercisable upon the Closing (as defined in the
Acquisition
<PAGE> 2
Agreement) and upon such Closing, the Old Options will immediately terminate
and be of no further force or effect.
This option shall terminate as of the date the Optionee ceases to be
an employee of the Company or a subsidiary of the Company. Notwithstanding the
foregoing, if the Optionee retires with the consent of the Company or a
subsidiary of the Company, this Option shall terminate three (3) months after
retirement, except as provided in the following sentence. If the Optionee
shall die while he is an employee of the Company or a subsidiary of the
Company, or within three (3) months after retirement with the consent of the
Company or a subsidiary of the Company, this Option may be exercised (to the
extent the Optionee would have been entitled to do so) by a legatee(s) of the
Optionee under his last will, or by a personal representative(s), at any time
within one (1) year after the earlier of death or retirement by consent.
2. Notice of Exercise. This Option may be exercised, in whole or
in part, from time to time, in accordance with the provisions of this
paragraph, by written notice to the Compensation Committee of the Board of
Directors of the Company (the "Committee") at the address provided below, which
notice shall:
(a) specify the number of whole shares of Common Stock to
be purchased and the exercise price to be paid
therefor;
(b) if the person exercising this Option is not the
Optionee, contain or be accompanied by evidence
satisfactory to the Committee of such person's right
to exercise this Option;
(c) state that it is the Optionee's present intention to
acquire the shares being purchased for investment and
not for resale; and
(d) be accompanied by payment in full of the exercise
price in the form of cash or by certified or
cashier's check payable to the order of the Company
or, with the consent of the Committee, with shares of
Common Stock owned by the Optionee or by a
combination of cash and such shares. In the event
that shares of Common Stock are used as partial or
full payment, each share shall be valued at the Fair
Market Value (as defined below) thereof on the date
of exercising the Option.
For purposes of this Agreement, "Fair Market Value" of shares of
Common Stock shall be determined in good faith by the Committee, provided that
(i) if the shares are actively traded on any national securities exchange or
reported by NASDAQ on a basis which reports closing sales prices, Fair Market
Value shall be the closing sales price per share of the shares for the business
day immediately preceding the valuation date; (ii) if the shares are otherwise
traded over the counter, Fair Market Value shall be the arithmetic mean of the
bid and asked prices for the shares, as reported by NASDAQ, for the business
day immediately preceding the valuation date; and (iii) if the shares are not
traded, Fair Market Value shall be determined by the Committee which shall, in
making such
2
<PAGE> 3
determination, consider, where applicable, among other factors, the existence
and extent of a private market for the shares and a public market for the
Company's securities of the same class, if any; the price at which the shares
were acquired, if applicable, by the Company; the estimated period of time, if
any, during which the shares will be freely marketable; the estimated amount of
floating supply of shares available; changes in the financial condition and
prospects of the Company; the existence of merger proposals or payment of a
stock dividend on the shares, a subdivision or combination of shares, a
reclassification of the shares, a merger or consolidation, or other like
changes in the shares.
3. Exercise of Option. The Optionee represents that the shares
of Common Stock acquired upon exercise of this Option shall be acquired for the
Optionee's own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the "Act"), or other
applicable federal or state securities laws. If the Committee so determines,
any certificates for shares issued upon exercise of this Option shall bear a
legend to the effect that the shares have been so acquired. The Company may,
but in no event shall be required to, bear any expenses of complying with the
Act, other applicable securities laws, or the rules and regulations of any
national securities exchange or other regulatory authority in connection with
the registration, qualification or transfer, as the case may be, of any shares
of Common Stock acquired upon the exercise of this Option. The foregoing
representation and restrictions on the transfer of the shares of Common Stock
shall be inoperative if (a) the Company has been previously furnished with an
opinion of counsel, satisfactory to it, to the effect that such transfer will
not involve any violation of the Act or other applicable federal or state
securities laws, or (b) the shares have been fully registered in compliance
with the Act and other applicable securities laws.
4. Adjustments. After any merger of one or more corporations
into the Company, any merger of the Company into another corporation, any
consolidation of the Company as a party thereto involving any exchange,
conversion, adjustment or other modification of the outstanding shares of
Common Stock, Optionee shall, at no additional cost, be entitled, upon any
exercise of his Option, to receive (subject to any required action by
stockholders), in lieu of the number of shares of Common Stock as to which the
Option shall then be so exercised, the number and class of shares of stock or
other securities or any other property to which the Optionee would have been
entitled pursuant to the terms of the agreement of merger, consolidation, or
other reorganization, if, at the time of the merger, consolidation or other
reorganization, the Optionee had been a holder of record of the number of
shares of Common Stock equal to the number of shares of Common Stock as to
which the Option shall then be so exercised. Comparable rights shall accrue to
Optionee in the event of successive mergers, consolidations or reorganization
of the character described above. The foregoing adjustments and the manner of
application of the foregoing provision shall be determined by the Committee in
its sole discretion. Any adjustment may provide for the elimination of any
fractional share of Common Stock which might otherwise become subject to an
Option.
5. Transferability of Option. This Option shall not be
transferable except by will or by the laws of descent and distribution. During
the Optionee's lifetime, this Option may be exercised only by the Optionee or
by the Optionee's guardian or legal representative. No assignment or transfer
of this Option, whether voluntary or involuntary, by operation of law or
otherwise, except a transfer
3
<PAGE> 4
by will or by the laws of descent or distribution, shall vest in the assignee
or transferee any interest or right whatsoever in this Option.
6. No Rights as Stockholder. The Optionee shall not be deemed a
stockholder of the Company with respect to any of the shares of Common Stock
subject to this Option, except to the extent that such shares shall have been
purchased and transferred to the Optionee. The Company shall not be required
to issue or transfer any certificates for shares of Common Stock purchased upon
exercise of this Option until all applicable requirements of law have been
complied with and such shares shall have been duly qualified for trading or
listed on any quotations system or securities exchange on which the shares of
Common Stock may then be trading or listed.
7. Limitation on Rights. This Option shall not confer on the
Optionee any right to continue as an employee of the Company or a subsidiary of
the Company or affect the Company's or any subsidiary's right to terminate the
Optionee's service at any time, and nothing contained herein shall be deemed a
waiver or modification of any provision contained in any agreement between the
Optionee and the Company or a subsidiary of the Company. This Option shall not
affect the right of the Company or any subsidiary thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup or
otherwise reorganize.
8. Committee's Powers. The Committee shall have the powers to
construe the terms of this Agreement and to make all other determinations and
perform all other acts as necessary or advisable for administering the terms
hereof. Any determination made by the Committee shall be final, binding and
conclusive on the Optionee.
9. Restrictions on Shares. At any time the shares of Common
Stock are not actively traded on any national securities exchange, on NASDAQ,
or otherwise over the counter, the Company reserves to itself or its assignee
(a) the right of first refusal to purchase shares of Common Stock issued
pursuant to this Option (the "Option Shares"), or any portion thereof, that an
Optionee (or a subsequent transferee) may propose to transfer to a third party,
and (b) the right to repurchase all Option Shares, or any portion thereof, held
by an Optionee upon the Optionee's termination of employment with the Company
or of any subsidiary thereof for any reason whatsoever. The purchase shall be
completed within fifteen (15) days of the date the Company sends notice that it
will exercise its right to purchase the Option Shares, or within three (3)
months and fifteen (15) days of the date of termination of employment. The
price to be paid for the Option Shares shall be their Fair Market Value on the
date of purchase by the Company, or its assignee. Payment shall be made in
cash on the date of the purchase unless the Optionee and Company shall agree
otherwise.
10. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date which it is personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance
4
<PAGE> 5
herewith. The Committee or Optionee may change, at any time and from time to
time, by written notice to the other, the address previously specified for
receiving notices. Until changed in accordance herewith, the Committee and the
Optionee specify their respective addresses as set forth below:
Committee: Compensation Committee
American Homestar Corporation
2221 East Lamar Boulevard, Suite 790
Arlington, Texas 76006-7422
Optionee: Jimmy Tyra
Brilliant Plant
Highway 129 North
Brilliant, AL 33548
11. Headings. The titles and headings of the paragraphs are
included for convenience or reference only and are not to be considered in
constriction of the provisions hereof.
12. Entire Agreement and Amendments. This Agreement embodies the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes any prior arrangements and understandings
relating to the subject matter hereof. This Agreement may be amended, modified
or superseded, and any of the terms and provisions hereof may be waived, but
only by a written instrument executed by the parties hereto.
13. Governing Law. All questions arising with respect to the
provisions of this Option shall be determined by application of the laws of the
State of Texas.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first set forth written.
THE COMPANY: AMERICAN HOMESTAR
CORPORATION
By:/s/ Laurence A. Dawson, Jr.
-------------------------------------
Its: President
------------------------------------
THE OPTIONEE: /s/ Jimmy Tyra
----------------------------------------
Jimmy Tyra
6
<PAGE> 1
EXHIBIT 4.5
AMERICAN HOMESTAR CORPORATION
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT
THIS REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT (this "Agreement")
is made and entered into as of the 5th day of June, 1997, between American
Homestar Corporation, a Texas corporation (the "Company"), and Vernon Berry
(the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has entered into that certain Securities Purchase
Agreement by and among the Company, Brilliant Holding Corporation ("Brilliant")
and the holders of all of the outstanding securities of Brilliant, dated as of
March 6, 1997, as amended by the First Amendment to the Securities Purchase
Agreement by the Company, Brilliant and the holders of all of the outstanding
securities of Brilliant, dated June 5, 1997 (the "Acquisition Agreement");
WHEREAS, under the Acquisition Agreement the securityholders of
Brilliant will receive in exchange for their securities (or in exchange for the
termination of their securities) of Brilliant, shares, or in the case of
optionholders, options to acquire shares, of the common stock, par value $0.05
per share, of the Company ("Company Common Stock"), (which shares and options
to acquire shares of Company Common Stock in the aggregate will equal 500,000
shares of Company Common Stock; and
WHEREAS, the Optionee held incentive stock options (the "Old Options")
to acquire a certain number of shares of Brilliant and pursuant to the terms of
the Acquisition Agreement, the Company desires to grant, and the Optionee
desires to receive, options to acquire a certain number of shares of Company
Common Stock as set forth below (the "New Options") in substitution for the Old
Options, which Old Options shall terminate under the terms of this Agreement;
WHEREAS, the number of shares of Company Common Stock subject to the
New Options was determined according to the same ratio as that used to
determine the number of shares of Company Common Stock payable for each share
of Brilliant under the Acquisition Agreement; and
WHEREAS, the parties desire that the substitution of the New Options
for the Old Options qualify as a substitution of new options to which Section
424(a) of the Internal Revenue Code of 1986, as amended, applies;
NOW, THEREFORE, in consideration of these premises and the covenants
contained in the Acquisition Agreement, the parties agree that the following
shall constitute the Agreement between the Company and the Optionee:
1. Grant of Option. Subject to the terms and conditions set
forth in this Agreement, the Company hereby grants to the Optionee the option
(the "Option") to purchase from the Company during the period ending December
31, 1998, 2,058 shares of Common Stock at a price of $9.11 per share. This
Option is immediately exercisable upon the Closing (as defined in the
Acquisition
<PAGE> 2
Agreement) and upon such Closing, the Old Options will immediately terminate
and be of no further force or effect.
This option shall terminate as of the date the Optionee ceases to be
an employee of the Company or a subsidiary of the Company. Notwithstanding the
foregoing, if the Optionee retires with the consent of the Company or a
subsidiary of the Company, this Option shall terminate three (3) months after
retirement, except as provided in the following sentence. If the Optionee
shall die while he is an employee of the Company or a subsidiary of the
Company, or within three (3) months after retirement with the consent of the
Company or a subsidiary of the Company, this Option may be exercised (to the
extent the Optionee would have been entitled to do so) by a legatee(s) of the
Optionee under his last will, or by a personal representative(s), at any time
within one (1) year after the earlier of death or retirement by consent.
2. Notice of Exercise. This Option may be exercised, in whole or
in part, from time to time, in accordance with the provisions of this
paragraph, by written notice to the Compensation Committee of the Board of
Directors of the Company (the "Committee") at the address provided below, which
notice shall:
(a) specify the number of whole shares of Common Stock to
be purchased and the exercise price to be paid
therefor;
(b) if the person exercising this Option is not the
Optionee, contain or be accompanied by evidence
satisfactory to the Committee of such person's right
to exercise this Option;
(c) state that it is the Optionee's present intention to
acquire the shares being purchased for investment and
not for resale; and
(d) be accompanied by payment in full of the exercise
price in the form of cash or by certified or
cashier's check payable to the order of the Company
or, with the consent of the Committee, with shares of
Common Stock owned by the Optionee or by a
combination of cash and such shares. In the event
that shares of Common Stock are used as partial or
full payment, each share shall be valued at the Fair
Market Value (as defined below) thereof on the date
of exercising the Option.
For purposes of this Agreement, "Fair Market Value" of shares of
Common Stock shall be determined in good faith by the Committee, provided that
(i) if the shares are actively traded on any national securities exchange or
reported by NASDAQ on a basis which reports closing sales prices, Fair Market
Value shall be the closing sales price per share of the shares for the business
day immediately preceding the valuation date; (ii) if the shares are otherwise
traded over the counter, Fair Market Value shall be the arithmetic mean of the
bid and asked prices for the shares, as reported by NASDAQ, for the business
day immediately preceding the valuation date; and (iii) if the shares are not
traded, Fair Market Value shall be determined by the Committee which shall, in
making such
2
<PAGE> 3
determination, consider, where applicable, among other factors, the existence
and extent of a private market for the shares and a public market for the
Company's securities of the same class, if any; the price at which the shares
were acquired, if applicable, by the Company; the estimated period of time, if
any, during which the shares will be freely marketable; the estimated amount of
floating supply of shares available; changes in the financial condition and
prospects of the Company; the existence of merger proposals or payment of a
stock dividend on the shares, a subdivision or combination of shares, a
reclassification of the shares, a merger or consolidation, or other like
changes in the shares.
3. Exercise of Option. The Optionee represents that the shares
of Common Stock acquired upon exercise of this Option shall be acquired for the
Optionee's own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the "Act"), or other
applicable federal or state securities laws. If the Committee so determines,
any certificates for shares issued upon exercise of this Option shall bear a
legend to the effect that the shares have been so acquired. The Company may,
but in no event shall be required to, bear any expenses of complying with the
Act, other applicable securities laws, or the rules and regulations of any
national securities exchange or other regulatory authority in connection with
the registration, qualification or transfer, as the case may be, of any shares
of Common Stock acquired upon the exercise of this Option. The foregoing
representation and restrictions on the transfer of the shares of Common Stock
shall be inoperative if (a) the Company has been previously furnished with an
opinion of counsel, satisfactory to it, to the effect that such transfer will
not involve any violation of the Act or other applicable federal or state
securities laws, or (b) the shares have been fully registered in compliance
with the Act and other applicable securities laws.
4. Adjustments. After any merger of one or more corporations
into the Company, any merger of the Company into another corporation, any
consolidation of the Company as a party thereto involving any exchange,
conversion, adjustment or other modification of the outstanding shares of
Common Stock, Optionee shall, at no additional cost, be entitled, upon any
exercise of his Option, to receive (subject to any required action by
stockholders), in lieu of the number of shares of Common Stock as to which the
Option shall then be so exercised, the number and class of shares of stock or
other securities or any other property to which the Optionee would have been
entitled pursuant to the terms of the agreement of merger, consolidation, or
other reorganization, if, at the time of the merger, consolidation or other
reorganization, the Optionee had been a holder of record of the number of
shares of Common Stock equal to the number of shares of Common Stock as to
which the Option shall then be so exercised. Comparable rights shall accrue to
Optionee in the event of successive mergers, consolidations or reorganization
of the character described above. The foregoing adjustments and the manner of
application of the foregoing provision shall be determined by the Committee in
its sole discretion. Any adjustment may provide for the elimination of any
fractional share of Common Stock which might otherwise become subject to an
Option.
5. Transferability of Option. This Option shall not be
transferable except by will or by the laws of descent and distribution. During
the Optionee's lifetime, this Option may be exercised only by the Optionee or
by the Optionee's guardian or legal representative. No assignment or transfer
of this Option, whether voluntary or involuntary, by operation of law or
otherwise, except a transfer
3
<PAGE> 4
by will or by the laws of descent or distribution, shall vest in the assignee
or transferee any interest or right whatsoever in this Option.
6. No Rights as Stockholder. The Optionee shall not be deemed a
stockholder of the Company with respect to any of the shares of Common Stock
subject to this Option, except to the extent that such shares shall have been
purchased and transferred to the Optionee. The Company shall not be required
to issue or transfer any certificates for shares of Common Stock purchased upon
exercise of this Option until all applicable requirements of law have been
complied with and such shares shall have been duly qualified for trading or
listed on any quotations system or securities exchange on which the shares of
Common Stock may then be trading or listed.
7. Limitation on Rights. This Option shall not confer on the
Optionee any right to continue as an employee of the Company or a subsidiary of
the Company or affect the Company's or any subsidiary's right to terminate the
Optionee's service at any time, and nothing contained herein shall be deemed a
waiver or modification of any provision contained in any agreement between the
Optionee and the Company or a subsidiary of the Company. This Option shall not
affect the right of the Company or any subsidiary thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup or
otherwise reorganize.
8. Committee's Powers. The Committee shall have the powers to
construe the terms of this Agreement and to make all other determinations and
perform all other acts as necessary or advisable for administering the terms
hereof. Any determination made by the Committee shall be final, binding and
conclusive on the Optionee.
9. Restrictions on Shares. At any time the shares of Common
Stock are not actively traded on any national securities exchange, on NASDAQ,
or otherwise over the counter, the Company reserves to itself or its assignee
(a) the right of first refusal to purchase shares of Common Stock issued
pursuant to this Option (the "Option Shares"), or any portion thereof, that an
Optionee (or a subsequent transferee) may propose to transfer to a third party,
and (b) the right to repurchase all Option Shares, or any portion thereof, held
by an Optionee upon the Optionee's termination of employment with the Company
or of any subsidiary thereof for any reason whatsoever. The purchase shall be
completed within fifteen (15) days of the date the Company sends notice that it
will exercise its right to purchase the Option Shares, or within three (3)
months and fifteen (15) days of the date of termination of employment. The
price to be paid for the Option Shares shall be their Fair Market Value on the
date of purchase by the Company, or its assignee. Payment shall be made in
cash on the date of the purchase unless the Optionee and Company shall agree
otherwise.
10. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date which it is personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance
4
<PAGE> 5
herewith. The Committee or Optionee may change, at any time and from time to
time, by written notice to the other, the address previously specified for
receiving notices. Until changed in accordance herewith, the Committee and the
Optionee specify their respective addresses as set forth below:
Committee: Compensation Committee
American Homestar Corporation
2221 East Lamar Boulevard, Suite 790
Arlington, Texas 76006-7422
Optionee: Vernon Berry
Brilliant Plant
Highway 129 North
Brilliant, AL 33548
11. Headings. The titles and headings of the paragraphs are
included for convenience or reference only and are not to be considered in
constriction of the provisions hereof.
12. Entire Agreement and Amendments. This Agreement embodies the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes any prior arrangements and understandings
relating to the subject matter hereof. This Agreement may be amended, modified
or superseded, and any of the terms and provisions hereof may be waived, but
only by a written instrument executed by the parties hereto.
13. Governing Law. All questions arising with respect to the
provisions of this Option shall be determined by application of the laws of the
State of Texas.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first set forth written.
THE COMPANY: AMERICAN HOMESTAR
CORPORATION
By:/s/ Laurence A. Dawson, Jr.
---------------------------------
Its: President
--------------------------------
THE OPTIONEE: /s/ Vernon Berry
------------------------------------
Vernon Berry
6
<PAGE> 1
EXHIBIT 4.6
AMERICAN HOMESTAR CORPORATION
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT
THIS REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT (this "Agreement")
is made and entered into as of the 5th day of June, 1997, between American
Homestar Corporation, a Texas corporation (the "Company"), and Mike Terrian
(the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has entered into that certain Securities Purchase
Agreement by and among the Company, Brilliant Holding Corporation ("Brilliant")
and the holders of all of the outstanding securities of Brilliant, dated as of
March 6, 1997, as amended by the First Amendment to the Securities Purchase
Agreement by the Company, Brilliant and the holders of all of the outstanding
securities of Brilliant, dated June 5, 1997 (the "Acquisition Agreement");
WHEREAS, under the Acquisition Agreement the securityholders of
Brilliant will receive in exchange for their securities (or in exchange for the
termination of their securities) of Brilliant, shares, or in the case of
optionholders, options to acquire shares, of the common stock, par value $0.05
per share, of the Company ("Company Common Stock"), (which shares and options
to acquire shares of Company Common Stock in the aggregate will equal 500,000
shares of Company Common Stock; and
WHEREAS, the Optionee held incentive stock options (the "Old Options")
to acquire a certain number of shares of Brilliant and pursuant to the terms of
the Acquisition Agreement, the Company desires to grant, and the Optionee
desires to receive, options to acquire a certain number of shares of Company
Common Stock as set forth below (the "New Options") in substitution for the Old
Options, which Old Options shall terminate under the terms of this Agreement;
WHEREAS, the number of shares of Company Common Stock subject to the
New Options was determined according to the same ratio as that used to
determine the number of shares of Company Common Stock payable for each share
of Brilliant under the Acquisition Agreement; and
WHEREAS, the parties desire that the substitution of the New Options
for the Old Options qualify as a substitution of new options to which Section
424(a) of the Internal Revenue Code of 1986, as amended, applies;
NOW, THEREFORE, in consideration of these premises and the covenants
contained in the Acquisition Agreement, the parties agree that the following
shall constitute the Agreement between the Company and the Optionee:
1. Grant of Option. Subject to the terms and conditions set
forth in this Agreement, the Company hereby grants to the Optionee the option
(the "Option") to purchase from the Company during the period ending December
31, 2000, 8,232 shares of Common Stock at a price of $12.15 per share. This
Option is immediately exercisable upon the Closing (as defined in the
Acquisition
<PAGE> 2
Agreement) and upon such Closing, the Old Options will immediately terminate
and be of no further force or effect.
This option shall terminate as of the date the Optionee ceases to be
an employee of the Company or a subsidiary of the Company. Notwithstanding the
foregoing, if the Optionee retires with the consent of the Company or a
subsidiary of the Company, this Option shall terminate three (3) months after
retirement, except as provided in the following sentence. If the Optionee
shall die while he is an employee of the Company or a subsidiary of the
Company, or within three (3) months after retirement with the consent of the
Company or a subsidiary of the Company, this Option may be exercised (to the
extent the Optionee would have been entitled to do so) by a legatee(s) of the
Optionee under his last will, or by a personal representative(s), at any time
within one (1) year after the earlier of death or retirement by consent.
2. Notice of Exercise. This Option may be exercised, in whole or
in part, from time to time, in accordance with the provisions of this
paragraph, by written notice to the Compensation Committee of the Board of
Directors of the Company (the "Committee") at the address provided below, which
notice shall:
(a) specify the number of whole shares of Common Stock to
be purchased and the exercise price to be paid
therefor;
(b) if the person exercising this Option is not the
Optionee, contain or be accompanied by evidence
satisfactory to the Committee of such person's right
to exercise this Option;
(c) state that it is the Optionee's present intention to
acquire the shares being purchased for investment and
not for resale; and
(d) be accompanied by payment in full of the exercise
price in the form of cash or by certified or
cashier's check payable to the order of the Company
or, with the consent of the Committee, with shares of
Common Stock owned by the Optionee or by a
combination of cash and such shares. In the event
that shares of Common Stock are used as partial or
full payment, each share shall be valued at the Fair
Market Value (as defined below) thereof on the date
of exercising the Option.
For purposes of this Agreement, "Fair Market Value" of shares of
Common Stock shall be determined in good faith by the Committee, provided that
(i) if the shares are actively traded on any national securities exchange or
reported by NASDAQ on a basis which reports closing sales prices, Fair Market
Value shall be the closing sales price per share of the shares for the business
day immediately preceding the valuation date; (ii) if the shares are otherwise
traded over the counter, Fair Market Value shall be the arithmetic mean of the
bid and asked prices for the shares, as reported by NASDAQ, for the business
day immediately preceding the valuation date; and (iii) if the shares are
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not traded, Fair Market Value shall be determined by the Committee which shall,
in making such determination, consider, where applicable, among other factors,
the existence and extent of a private market for the shares and a public market
for the Company's securities of the same class, if any; the price at which the
shares were acquired, if applicable, by the Company; the estimated period of
time, if any, during which the shares will be freely marketable; the estimated
amount of floating supply of shares available; changes in the financial
condition and prospects of the Company; the existence of merger proposals or
payment of a stock dividend on the shares, a subdivision or combination of
shares, a reclassification of the shares, a merger or consolidation, or other
like changes in the shares.
3. Exercise of Option. The Optionee represents that the shares
of Common Stock acquired upon exercise of this Option shall be acquired for the
Optionee's own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the "Act"), or other
applicable federal or state securities laws. If the Committee so determines,
any certificates for shares issued upon exercise of this Option shall bear a
legend to the effect that the shares have been so acquired. The Company may,
but in no event shall be required to, bear any expenses of complying with the
Act, other applicable securities laws, or the rules and regulations of any
national securities exchange or other regulatory authority in connection with
the registration, qualification or transfer, as the case may be, of any shares
of Common Stock acquired upon the exercise of this Option. The foregoing
representation and restrictions on the transfer of the shares of Common Stock
shall be inoperative if (a) the Company has been previously furnished with an
opinion of counsel, satisfactory to it, to the effect that such transfer will
not involve any violation of the Act or other applicable federal or state
securities laws, or (b) the shares have been fully registered in compliance
with the Act and other applicable securities laws.
4. Adjustments. After any merger of one or more corporations
into the Company, any merger of the Company into another corporation, any
consolidation of the Company as a party thereto involving any exchange,
conversion, adjustment or other modification of the outstanding shares of
Common Stock, Optionee shall, at no additional cost, be entitled, upon any
exercise of his Option, to receive (subject to any required action by
stockholders), in lieu of the number of shares of Common Stock as to which the
Option shall then be so exercised, the number and class of shares of stock or
other securities or any other property to which the Optionee would have been
entitled pursuant to the terms of the agreement of merger, consolidation, or
other reorganization, if, at the time of the merger, consolidation or other
reorganization, the Optionee had been a holder of record of the number of
shares of Common Stock equal to the number of shares of Common Stock as to
which the Option shall then be so exercised. Comparable rights shall accrue to
Optionee in the event of successive mergers, consolidations or reorganization
of the character described above. The foregoing adjustments and the manner of
application of the foregoing provision shall be determined by the Committee in
its sole discretion. Any adjustment may provide for the elimination of any
fractional share of Common Stock which might otherwise become subject to an
Option.
5. Transferability of Option. This Option shall not be
transferable except by will or by the laws of descent and distribution. During
the Optionee's lifetime, this Option may be exercised
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only by the Optionee or by the Optionee's guardian or legal representative. No
assignment or transfer of this Option, whether voluntary or involuntary, by
operation of law or otherwise, except a transfer by will or by the laws of
descent or distribution, shall vest in the assignee or transferee any interest
or right whatsoever in this Option.
6. No Rights as Stockholder. The Optionee shall not be deemed a
stockholder of the Company with respect to any of the shares of Common Stock
subject to this Option, except to the extent that such shares shall have been
purchased and transferred to the Optionee. The Company shall not be required
to issue or transfer any certificates for shares of Common Stock purchased upon
exercise of this Option until all applicable requirements of law have been
complied with and such shares shall have been duly qualified for trading or
listed on any quotations system or securities exchange on which the shares of
Common Stock may then be trading or listed.
7. Limitation on Rights. This Option shall not confer on the
Optionee any right to continue as an employee of the Company or a subsidiary of
the Company or affect the Company's or any subsidiary's right to terminate the
Optionee's service at any time, and nothing contained herein shall be deemed a
waiver or modification of any provision contained in any agreement between the
Optionee and the Company or a subsidiary of the Company. This Option shall not
affect the right of the Company or any subsidiary thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup or
otherwise reorganize.
8. Committee's Powers. The Committee shall have the powers to
construe the terms of this Agreement and to make all other determinations and
perform all other acts as necessary or advisable for administering the terms
hereof. Any determination made by the Committee shall be final, binding and
conclusive on the Optionee.
9. Restrictions on Shares. At any time the shares of Common
Stock are not actively traded on any national securities exchange, on NASDAQ,
or otherwise over the counter, the Company reserves to itself or its assignee
(a) the right of first refusal to purchase shares of Common Stock issued
pursuant to this Option (the "Option Shares"), or any portion thereof, that an
Optionee (or a subsequent transferee) may propose to transfer to a third party,
and (b) the right to repurchase all Option Shares, or any portion thereof, held
by an Optionee upon the Optionee's termination of employment with the Company
or of any subsidiary thereof for any reason whatsoever. The purchase shall be
completed within fifteen (15) days of the date the Company sends notice that it
will exercise its right to purchase the Option Shares, or within three (3)
months and fifteen (15) days of the date of termination of employment. The
price to be paid for the Option Shares shall be their Fair Market Value on the
date of purchase by the Company, or its assignee. Payment shall be made in
cash on the date of the purchase unless the Optionee and Company shall agree
otherwise.
10. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date which it is personally delivered, or,
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whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance herewith.
The Committee or Optionee may change, at any time and from time to time, by
written notice to the other, the address previously specified for receiving
notices. Until changed in accordance herewith, the Committee and the Optionee
specify their respective addresses as set forth below:
Committee: Compensation Committee
American Homestar Corporation
2221 East Lamar Boulevard, Suite 790
Arlington, Texas 76006-7422
Optionee: Mike Terrian
Carriage Plant
Highway 78 West
Guin, AL 35568
11. Headings. The titles and headings of the paragraphs are
included for convenience or reference only and are not to be considered in
constriction of the provisions hereof.
12. Entire Agreement and Amendments. This Agreement embodies the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes any prior arrangements and understandings
relating to the subject matter hereof. This Agreement may be amended, modified
or superseded, and any of the terms and provisions hereof may be waived, but
only by a written instrument executed by the parties hereto.
13. Governing Law. All questions arising with respect to the
provisions of this Option shall be determined by application of the laws of the
State of Texas.
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IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first set forth written.
THE COMPANY: AMERICAN HOMESTAR
CORPORATION
By: /s/ Laurence A. Dawson, Jr.
-------------------------------------
Its: President
------------------------------------
THE OPTIONEE: /s/ Mike Terrian
----------------------------------------
Mike Terrian
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<PAGE> 1
EXHIBIT 5.1
September 25, 1997
American Homestar Corporation
2450 South Shore Boulevard, Suite 300
League City Texas 77573
Re: Registration Statement on Form S-8 of American Homestar
Corporation.
Gentlemen:
We are acting as counsel for American Homestar Corporation., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of up
to 13,171 shares of the Company's Common Stock, par value $.05 per share (the
"Shares"), which shares are issuable upon the exercise of options ("Options")
granted pursuant to the provisions of the various Replacement Incentive Stock
Option Agreements by and between the Corporation, on the one hand, and Joan
Vickery ("Vickery"), Jimmy Tyra ("Tyra"), Vernon Berry ("Berry") and Mike
Terrian ("Terrian"), respectively, on the other (each an "Agreement" and
collectively the "Agreements"). A Registration Statement on Form S-8 covering
the offering and sale of the Shares (the "Registration Statement") is expected
to be filed with the Securities and Exchange Commission on or about the date
hereof.
In reaching the conclusions expressed in this opinion we have examined
and relied on such documents, corporate records and other instruments,
including certificates of public officials and certificates of officers of the
Company, and made such further investigation and inquiry as we have deemed
necessary to reach the opinions expressed herein. In making the foregoing
examinations, we have assumed the genuineness of all signatures on original
documents, the authenticity, accuracy and completeness of all documents
submitted to us as originals and the conformity to original documents of all
copies submitted to us.
Based solely upon the foregoing, subject to the comments and
exceptions hereinafter stated, it is our opinion that the Shares, when sold by
the Company in accordance with the terms of the Agreements for consideration
having a value not less than the par value thereof, will be validly and legally
issued, fully paid and nonassessable.
<PAGE> 2
We express no opinion as to the laws of any jurisdiction other than
the laws of the State of Texas and the federal laws of the United States of
America, in each case as in effect on the date hereof.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
Jackson Walker L.L.P.
<PAGE> 1
EXHIBIT 23.2
The Board of Directors
American Homestar Corporation:
We consent to the incorporation by reference in the registration statement (No.
333- ) on Form S-8 of American Homestar Corporation of our report dated
June 26, 1997, relating to the consolidated balance sheets of American Homestar
Corporation and Subsidiaries as of May 31, 1997 and 1996, and the related
consolidated statements of operations, shareholders' equity and cash flows for
each of the years in the three-year period ended May 31, 1997, and the related
schedule, which report appears in the May 31, 1997 annual report on Form 10-K
of American Homestar Corporation.
/s/ KPMG PEAT MARWICK LLP
Houston, Texas
September 26, 1997
