<PAGE> 1
As filed with the Securities and Exchange Commission on November 13, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
------------------------------
WFS FINANCIAL INC
--------------------
(Exact Name of Registrant as Specified in Charter)
CALIFORNIA 33-0291646
(Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
23 PASTEUR ROAD
IRVINE, CALIFORNIA 92713-9762
(Address of Principal Executive Offices)
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
(Full title of the Plan)
Harriet Burns Feller
General Counsel
WFS Financial Inc
23 Pasteur Road
Irvine, California 92618-3816
(714) 727-1000
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copies of communications to:
Andrew E. Katz, Esq.
Mitchell, Silberberg & Knupp LLP
11377 West Olympic Boulevard
Los Angeles, California 90064-1683
(310) 312-3738
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Without Par Value 1,100,000 $21.75; $18.375; $18,621,750(1) $6,135.91(1)(2)
$13.00; $11.5625(1)
========================================================================================================================
</TABLE>
(1) Computed pursuant to Rules 457(c) and 457(h)(1) based on the average of the
high ($22.50) and low ($21.00) sales price of the Common Stock as reported
on the Nasdaq National Market on June 28, 1996 with respect to 500,000
shares previously registered pursuant to Registration Statement on Form S-8
(File No. 333-07485), the average of the high ($19.75) and low ($17.00)
sales price of the Common Stock as reported on the Nasdaq National Market
on July 25, 1996, with respect to an additional 50,000 shares previously
registered pursuant to Registration Statement on Form S-8 (File No.
333-08991), the exercise price of $13.00 with respect to the additional
326,000 shares registered hereby and the average of the high ($11.875) and
low ($11.25) sales price of the Common Stock as reported on the Nasdaq
National Market on November 11, 1997, with respect to the additional
224,000 shares registered hereby.
(2) Includes an aggregate of $4,066.81 paid on July 3, 1996 and July 26, 1996.
The additional filing fee of $2,069.10 is paid with respect to the 550,000
shares registered hereby, pursuant to General Instruction E to Form S-8.
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<PAGE> 2
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant
pursuant to the Exchange Act are incorporated by reference in this Registration
Statement:
1. The Registrant's Registration Statement on Form S-8 filed on
July 3, 1996 (File No. 333-07485) and the Registrant's Registration Statement
on Form S-8 filed on July 26, 1996 (File No. 333-08991).
2. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
3. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997;
4. The Registrant's Current Reports on Form 8-K filed on May 6, 1997 and
July 15, 1997;
5. All other reports filed by the registrant pursuant to Sections 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in paragraph 1, above.
6. The description of the Registrant's Common Stock contained in Item 9
of the Registrant's Amendment No. 3 to registration statement on Form S-1 filed
with the Commission on August 4, 1995 (Registration No. 33-93068), including any
amendment filed for the purpose of updating such description.
All documents and other reports subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered 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 part hereof from the date of filing of such documents or reports. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is, 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 Registration Statement.
EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement on Form S-8 to be signed
on its behalf by the undersigned, thereunto duly authorized, in Irvine,
California, on November 12, 1997.
WFS FINANCIAL INC
By: /s/ ERNEST S. RADY
---------------------------------------
Ernest S. Rady, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ ERNEST S. RADY
- --------------------------- Chairman of the Board and Director November 12, 1997
Ernest S. Rady
/s/ JOY SCHAEFER
- --------------------------- Vice Chairman, Director, President and Chief November 13, 1997
Joy Schaefer Executive Officer
/s/ JAMES R. DOWLAN
- --------------------------- Vice Chairman, Director and Senior Executive Vice November 12, 1997
James R. Dowlan President
/s/ HOWARD C. REESE
- --------------------------- Vice Chairman and Director November 12, 1997
Howard C. Reese
/s/ ANDREY R. KOSOVYCH
- --------------------------- Vice Chairman and Director November 12, 1997
Andrey R. Kosovych
- --------------------------- Director November __, 1997
Bernard E. Fipp
- --------------------------- Director November __, 1997
Duane A. Nelles
- --------------------------- Director November __, 1997
Robert S. Waligore
/s/ LEE A. WHATCOTT
- --------------------------- Executive Vice President (Principal Financial and November 12, 1997
Lee A. Whatcott Accounting Officer) and Chief Financial Officer
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- ------- -------
<S> <C>
4.1 Amended and Restated 1996 Stock Option Plan
4.2 Form of Incentive Stock Option Agreement
4.3 Form of Non-Qualified Stock Option Agreement
5 Opinion of Mitchell, Silberberg & Knupp LLP re: legality
23.1 Consent of Mitchell, Silberberg & Knupp LLP (included in its opinion
contained in Exhibit 5)
23.2 Consent of Ernst & Young LLP
</TABLE>
3
<PAGE> 1
EXHIBIT 4.1
AMENDED AND RESTATED l996 STOCK OPTION PLAN
OF
WFS FINANCIAL INC
1. Purpose. The purpose of this Amended and Restated Stock Option Plan
is to advance the interests of the Company by encouraging and enabling the
acquisition of a larger personal proprietary interest in the Company by
employees of the Company and its Subsidiaries upon whose judgment and keen
interest the Company is largely dependent for the successful conduct of its
operations. It is anticipated that the acquisition of such proprietary interest
in the Company will stimulate the efforts of employees on behalf of the Company
and its Subsidiaries and strengthen their desire to remain with the Company and
its Subsidiaries. It is also expected that the opportunity to acquire such a
proprietary interest will enable the Company and its Subsidiaries to attract
desirable personnel.
2. Definitions. When used in this Plan, unless the context otherwise
requires:
"Board of Directors" shall mean the Board of Directors of the
Company, as constituted at any time.
"Committee" shall have the meaning set forth at Paragraph 3 hereof.
"Company" shall mean WFS Financial Inc, a California corporation.
"Director" shall mean a member of the Board of Directors.
"Employee" shall mean any full-time or part-time employee of the
Company or any Subsidiary.
"Fair Market Value" on a specified date shall mean the closing price
for a Share on the stock exchange, if any, on which Shares are primarily traded,
but if no Shares were traded on such date, then on the last previous date on
which a Share was so traded, or, if Shares are not primarily traded on a stock
exchange, the average of the bid and asked closing prices at which one Share is
traded on the over-the-counter market, as reported on the National Association
of Securities Dealers Automated Quotation National Market, or, if none of the
above is applicable, the value of a Share as established by the Board of
Directors for such date using any reasonable method of valuation.
"Incentive Stock Option" shall mean an incentive stock option within
the meaning of Internal Revenue Code Section 422.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as it may be amended.
<PAGE> 2
"Option Certificate" shall have the meaning set forth at Paragraph
5.5 hereof.
"Options" shall mean the stock options issued pursuant to this Plan.
"Plan" shall mean this Amended and Restated 1996 Stock Option Plan of
the Company, as previously adopted by the Board of Directors as of June 28, 1996
and amended and restated as of October 28, 1997, as such Plan from time to time
may be further amended.
"Share" shall mean a share of common stock of the Company, without
par value.
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if, at the relevant date, each of the
corporations in the chain other than the last corporation in the unbroken chain
owns stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
3. Administration of the Plan. The Plan shall be administered by the
Compensation Committee of the Board of Directors (the "Committee"). Each member
of the Committee shall hold office until his successor is designated as a member
of the Committee by the Board of Directors. Any vacancy in the Committee may be
filled by a resolution adopted by a majority of the full Board of Directors. Any
member of the Committee may be removed at any time, with or without cause, by
resolution adopted by a majority of the full Board of Directors. A member of the
Committee may resign from the Committee at any time by giving written notice to
the President or Corporate Secretary of the Company, and unless otherwise
specified therein, such resignation shall take effect upon receipt thereof. The
acceptance of such resignation shall not be necessary to make it effective. The
Committee shall establish such rules and procedures as are necessary or
advisable to administer the Plan. At any time that no Committee is in existence,
the Board of Directors shall constitute the Committee and shall perform the
functions and hold the powers of the Committee.
4. Participants. The class of employees who are potential recipients of
Incentive Stock Options to be granted under this Plan shall consist of the
Employees of the Company or a Subsidiary, including Employees who are also
Directors, as determined by the Committee. Options that are not Incentive Stock
Options may be granted to Employees of the Company or a Subsidiary or to
Directors. The Employees or Directors to whom options are granted under this
Plan and the number of Shares subject to each such Option shall be determined by
the Committee, in its sole discretion, subject, however, to the terms and
conditions of this Plan.
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<PAGE> 3
5. Shares; Grant of Options.
5.1 The Committee may, but shall not be required to, grant, in
accordance with this Plan, Options to purchase an aggregate of up to 1,100,000
Shares (as such number may be adjusted pursuant to Paragraph 13.1), which may be
either treasury Shares or authorized but unissued Shares.
5.2 An Option granted under this Plan shall be deemed to be an
Incentive Stock Option unless the Committee, in its sole discretion, designates
otherwise. Options which are designated not to be Incentive Stock options shall
not be treated as such for purposes of this Plan and the Internal Revenue Code.
5.3 If any Option shall expire or terminate for any reason without
having been exercised in full, the unpurchased Shares subject thereto may again
be made subject to Options under the Plan.
5.4 Nothing herein contained shall be construed to prohibit the grant
of Options at different times to the same employee.
5.5 The form of Option shall be determined from time to time by the
Committee. The terms and provisions of the Option shall be set forth in writing
in a certificate or agreement (the "Option Certificate") signed by the Option
holder and on behalf of the Company by the Chairman of the Board or the
President or a Vice President or the Corporate Secretary of the Company. The
Option Certificate shall state whether or not the Option is an Incentive Stock
Option. The Committee may, in its sole discretion, at the time an Option is
granted, establish one or more conditions to the exercise of an Option, provided
that such condition or conditions shall not be inconsistent with Section 422 of
the Internal Revenue Code.
6. Price. The exercise price per Share of the Shares to be purchased
pursuant to any Option shall be fixed by the Committee at the time an Option is
granted; provided, however, that, in no event shall the exercise price be less
than the Fair Market Value of a Share on the day on which the Option is granted.
7. Duration of Options. The duration of any Option granted under this
Plan shall be for a period fixed by the Committee but not more than ten (10)
years from the date upon which the Option is granted.
8. Limitations Regarding Ten Percent Shareholders. No Option which is
intended to qualify as an Incentive Stock Option may be granted under this Plan
to any Employee who, at the time the Option is granted, owns, or is considered
as owning, within the meaning of Section 422 of the Internal Revenue Code,
shares possessing more than ten percent (10%) of the total combined voting power
or value of all classes of stock of the Company or any Subsidiary, unless (i)
the exercise price under such Option is at
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<PAGE> 4
least one hundred and ten percent (110%) of the Fair Market Value of a Share on
the date such Option is granted, and (ii) the duration of the Option is not more
than five (5) years from the date on which the Option is granted.
9. Option Holder Not a Shareholder. An Option holder shall not be deemed
to be the holder of, or to have any of the rights of, a shareholder with respect
to, any Shares subject to such Option unless and until the Option shall have
been exercised pursuant to the terms thereof, the Option Holder shall have
tendered the full purchase price to the Company in a manner permitted hereunder
and, to the extent applicable, the Option Holder shall have tendered to the
Company any funds necessary to fulfill the tax withholding obligation of that
Option Holder to the extent not satisfied in the manner contemplated by
paragraph 15, below. Thereupon, said holder shall have full voting, dividend and
other ownership rights with respect to such Shares.
10. Non-transferability of Options. Options and all rights thereunder
shall be non-transferable and non-assignable by the holder thereof and shall be
exercisable only by the holder, except to the extent that the representative of
the estate or the heirs of a deceased Option holder may be permitted to exercise
them.
11. Exercise of Options.
11.1 Except as otherwise provided herein, an Option, after the grant
thereof, shall be exercisable by the holder at such rate and times as may be
fixed by the Committee at the time the Option is granted; provided, however,
that no Option may be exercised in part or in full (a) prior to the approval of
the Plan by a majority vote of the shareholders of the Company as provided in
Paragraph 17 of this Plan and (b) until any and all Stock Appreciation Rights
("SARs") previously granted to an Option holder pursuant to the Company's
Employee Stock Appreciation Rights Plan (1995) or Director Stock Appreciation
Rights Plan (1995) (collectively, the "Plans") shall have been exercised by the
Option holder during the earliest "SAR Exercise Period" that occurs immediately
after the date of grant of the Option. "SAR Exercise Period" means the period
beginning on the third business day following the date of the "release of the
financial data" (as defined below) for any fiscal quarter or fiscal year of the
Company and ending on the twelfth business day following such date. As used
herein, the term "release of the financial data" means the publication of
quarterly and annual summary statements of the Company's revenues and earnings
either on a wire service, in a financial news service, or in a newspaper of
general circulation or the making of such financial information otherwise
publicly available, for example, by press release to a wire service, financial
news service or newspaper of general circulation. Notwithstanding any provisions
in the Plans to the contrary, the exercise price of the SARs so exercised shall
be equal to the exercise price of the Options granted to the Option holder
immediately prior to the exercise of such SARs. Any Option granted hereunder as
to which all related SARs have not been exercised within the SAR Exercise Period
shall automatically terminate and become void as of the close of business on the
last business day in the SAR Exercise
4
<PAGE> 5
Period.
Unless otherwise determined by the Committee, and subject to the
provisions above, (i) no Option may be exercised until the first anniversary of
the date on which the Option was granted, (ii) 25% of the Shares subject to an
Option may be purchased on or after the first anniversary of the date of grant,
and (iii) an additional 25% of the Shares subject to the Option may be purchased
on or after each of the next succeeding three (3) anniversaries of the date of
grant.
11.2 An Option shall be exercised by the delivery of a written
notice duly signed by the Option holder thereof (or the representative of the
estate or the heirs of a deceased Option holder) to such effect, together with
the Option Certificate and either cash, a certified check payable to the order
of the Company or Shares duly endorsed over to the Company (which Shares shall
be valued at their Fair Market Value as of the date preceding the day of such
exercise) or any combination of such methods of payment, which together amount
to the full exercise price of the Shares purchased pursuant to the exercise of
the Option, to the Corporate Secretary or an officer of the Company who has been
designated for the purpose of receiving the same. No Option may be granted
pursuant to the Plan or exercised at any time when such Option, or the granting
or exercise thereof, may result in the violation of any law or governmental
order or regulation.
11.3 Within a reasonable time after exercise of an option, the
Company shall cause to be delivered to the person entitled thereto a certificate
for the Shares purchased pursuant to the exercise of the Option. If the Option
shall have been exercised with respect to less than all of the Shares subject to
the Option, the Company shall also cause to be delivered to the person entitled
thereto a new Option Certificate in replacement of the Option Certificate
surrendered at the time of the exercise of the Option, indicating the number of
Shares with respect to which the Option remains available for exercise, or the
original Option Certificate shall be endorsed to give effect to the partial
exercise thereof.
11.4 Notwithstanding any provision in the Plan to the contrary, with
respect to an Option which is intended to be an Incentive Stock Option, to the
extent that the Fair Market Value of the Shares (determined as of the date of
grant) with respect to which such Option (and any other Incentive Stock Option
granted under the Plan or any other stock option plan adopted by the Company or
any Subsidiary) first becomes exercisable in any calendar year exceeds
$100,000.00 the Option shall not be an Incentive Stock Option as to that excess
amount.
11.5 All or any part of any remaining unexercised Options granted to
any person may, after approval of the Plan by the shareholders of the Company as
provided in Paragraph 17 of this Plan, be exercised in full, whether or not then
exercisable, upon (a) the attainment by the holder of age 65, provided the
holder is still an Employee of the
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<PAGE> 6
Company or a Subsidiary or is still a Director; (b) the holder's death while in
the employ of the Company or a Subsidiary or while a Director; or (c) upon the
occurrence of such special circumstance or event as, in the sole discretion of
the Committee, merits special consideration.
12. Termination of Employment or Service.
12.1 All or any part of any Option which is intended to be an
Incentive Stock Option, to the extent unexercised, shall terminate immediately
upon the cessation or termination for any reason of the Option holder's
employment by the Company and all Subsidiaries (including circumstances under
which a Subsidiary employing the Option holder ceases to be a Subsidiary or is
liquidated and the Option holder does not continue to be employed by the Company
or another Subsidiary), regardless of whether the Option holder is or remains a
Director, except that the Option holder shall have until the end of three (3)
months following and including the date of cessation or termination of his
employment with the Company and all Subsidiaries, and no longer, to exercise any
unexercised Option that he could have exercised on the day on which such
employment ceased or terminated; provided, that such exercise must be
accomplished prior to the expiration of the term of such Option.
12.2 All or any part of any Option which is not intended to be an
Incentive Stock Option, to the extent unexercised, shall terminate immediately
upon (i) the cessation or termination for any reason of the Option holder's
employment by the Company and all Subsidiaries (including circumstances under
which a Subsidiary employing the Option holder ceases to be a Subsidiary or is
liquidated and the Option holder does not continue to be employed by the Company
or another Subsidiary), unless the Option holder as of the date of such
cessation or termination and immediately thereafter is a Director, or (ii) upon
the Option holder ceasing to be a Director, unless on the date of such cessation
and immediately thereafter he is an Employee of the Company or a Subsidiary;
except that the Option holder shall have until the end of three (3) months
following the cessation or termination of employment or following his ceasing to
be a Director, respectively, and no longer, to exercise any unexercised Option
that he could have exercised on the day on which such employment ceased or
terminated, or he ceased to be a Director, respectively; provided, that such
exercise must be accomplished prior to the expiration of the term of such
Option.
12.3 Notwithstanding Paragraphs 12.1 and 12.2, if the cessation or
termination of an Option holder's employment or an Option holder's ceasing to be
a Director is due to the permanent and total disability of the Option holder
within the meaning of Internal Revenue Code Section 22(e)(3), the existence of
which permanent and total disability shall be determined by the Committee in its
sole discretion (which determination by the Committee shall be conclusive), the
Option holder shall have the privilege of exercising any Option which is
unexercised at the time of such cessation or termination, but only to the extent
that such Option is then exercisable, within twelve (12)
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months of such cessation or termination: provided, however, that such exercise
must be accomplished prior to the expiration of the term of such Option.
12.4 Notwithstanding Paragraphs 12.1 and 12.2, if the cessation of
an Option holder's employment or an Option holder's ceasing to be a Director is
due to death, the representative of the estate or the heirs of a deceased Option
holder, shall have the privilege of exercising any Option which is unexercised
at the time of such death, but only to the extent that such Option is then
exercisable, within twelve (12) months of the Option holder's death; provided,
however, that such exercise must be accomplished prior to the expiration of the
term of such Option.
12.5 Notwithstanding Paragraphs 12.1 and 12.2, if the employment of
any Option holder with the Company or a Subsidiary shall be terminated because
of the Option holder's violation of the duties of such employment with the
Company or a Subsidiary as he may from time to time have, the existence of which
violation shall be determined by the Committee in its sole discretion (which
determination by the Committee shall be conclusive), all unexercised Options of
such Option holder shall terminate immediately upon such termination, and an
Option holder whose employment with the Company or a Subsidiary is so terminated
shall have no right after such termination to exercise any unexercised Option he
might have exercised prior to the termination of his employment.
12.6 Nothing contained herein or in the Option Certificate shall be
construed to confer on any Employee any right to continue in the employ of the
Company or any Subsidiary or derogate from any right of the Company and any
Subsidiary to retire, request the resignation of or discharge such Employee, at
any time, with or without cause.
13. Changes in Securities or Corporate Organization.
13.1 Adjustment of Shares. Except as otherwise provided in the
Option Certificate for an Option, if prior to the complete exercise of any
Option there shall be declared and paid a stock dividend upon the common stock
of the Company or if the common stock of the Company shall be split up,
converted, exchanged, reclassified, or in any way substituted for, the Option,
to the extent that it has not been exercised, shall entitle the holder thereof
upon the future exercise of the Option to such number and kind of securities or
other property subject to the terms of the Option to which he would have been
entitled had he actually owned the Shares subject to the unexercised portion of
the Option at the time of the occurrence of such stock dividend, split-up,
conversion, exchange, reclassification or substitution; and the aggregate
purchase price upon the future exercise of the Option shall be the same as if
the originally optioned Shares were being purchased thereunder. Any fractional
shares or securities payable upon the exercise of the Option as a result of such
adjustment shall be payable in cash based upon the Fair Market Value of such
shares or securities at the time of such exercise. If any such event
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<PAGE> 8
should occur, the number of Shares with respect to which Options remain to be
issued, or with respect to which Options may be reissued under the Plan shall be
adjusted in a similar manner.
13.2 Acquisition or Reorganization. In the event of an acquisition
by a person or entity, or a group of persons or entities acting in conjunction,
of more than fifty percent (50%) of the issued and outstanding shares of stock
of the Company having ordinary voting power (excluding acquisitions by any
person or entity or a group of persons or entities holding more than 50% of such
stock on June 28, 1996), or a sale, lease, transfer or other disposition of all
or substantially all of the assets of the Company, or a merger or consolidation
of the Company into or with any other person or entity which results in the
acquisition of the Company by a non-affiliated person or entity, or any other
event which would similarly constitute an acquisition of the Company by a
non-affiliated person or entity, in the event provision is not made in the
transaction for the continuance of the Plan and for the assumption of Options
theretofore granted or the substitution for those Options of new options
covering the securities of a successor corporation or a parent or subsidiary
thereof, or in the event such provision is made but the Company has not agreed
to it, an Option holder shall be entitled, during the period thirty (30) days
prior to the effective date of the consummation of any such transaction, to
purchase, in whole or in part, the full number of Shares under the Option which
the Option holder would otherwise have been entitled to purchase during the
remaining term of the Option and without regard to exercise dates or any
otherwise applicable exercise restrictions set forth in the Option Certificate
or the Plan (other than the expiration date of the Option). To the extent that
any such exercise relates to stock that is not otherwise available for purchase
through the exercise of the Option by the Option holder at that time, the
exercise shall be contingent upon the consummation of the transaction.
14. Issuance of Shares and Compliance with Securities Laws. Before
issuing and delivering any Shares to an Option holder, the Company may: (i)
require the holder to give satisfactory assurances that the Shares are being
purchased for investment and not with a view to resale or distribution, and will
not be transferred in violation of applicable securities laws; (ii) restrict the
transferability of such Shares and require a legend to be endorsed on the
certificates representing the Shares; and (iii) condition the exercise of an
Option or the issuance and delivery of Shares upon the listing, registration or
qualification of the Shares covered by such Option upon a securities exchange or
under applicable securities laws.
15. Income Tax Withholding. If the Company or a Subsidiary shall be
required to withhold any amounts by reason of any federal, state or local tax
rules or regulations in respect of the payment of cash or the issuance of Shares
pursuant to the exercise of an Option, the Company or the Subsidiary shall be
entitled to deduct and withhold such amounts from any cash payments to be made
to the Option holder. In any event, the holder shall make available to the
Company or Subsidiary, promptly when requested by the Company or such
Subsidiary, sufficient funds to meet the requirements of such
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withholding and the Company or Subsidiary shall be entitled to take and
authorize such steps as it may deem advisable in order to have such funds made
available to the Company or Subsidiary out of any funds or property due or to
become due to the holder.
16. Administration and Amendment of the Plan. Except as hereinafter
provided, the Board of Directors or the Committee may at any time withdraw or
from time to time amend the Plan as it relates to, and the terms and conditions
of, any Options not theretofore granted, and the Board of Directors or the
Committee, with the consent of each adversely affected Option holder (if any),
may at any time withdraw or from time to time amend the Plan as it relates to,
and the terms and conditions of, any outstanding Option. Notwithstanding the
foregoing, any amendment by the Board of Directors or the Committee which would
increase the number of Shares issuable under Options or change the class of
employees to whom Options which are intended to be Incentive Stock Options may
be granted or the class of persons to whom Options which are not intended to be
Incentive Stock Options may be granted, shall be subject to the approval of the
shareholders of the Company within one (1) year of the adoption of such
amendment.
Determinations of the Committee as to any question which may arise
with respect to the interpretation of the provisions of the Plan and Options
shall be final. The Committee may authorize and establish such rules,
regulations and revisions thereof, not inconsistent with the provisions of the
Plan, as it may deem advisable to make the Plan and Options effective or provide
for their administration, and may take such other action with regard to the Plan
and Options as it shall deem desirable to effectuate their purpose.
17. Effective Date of the Plan. This Plan is conditioned upon its
approval by the shareholders of the Company at any special or annual meeting of
the shareholders on or before October 27, 1998 by the vote of the holders of a
majority of the outstanding Shares of the Company, voting either in person or by
proxy, at a duly held shareholders' meeting or by written consents to the extent
permitted by the NASD or such stock exchange, if any, on which Shares are
traded; except that this Plan is adopted and approved by the Board of Directors
effective October 28, 1997 to permit the grant of Options prior to the approval
of the Plan by the shareholders of the Company as aforesaid. In the event that
this Plan is not approved by the shareholders of the Company as aforesaid, this
Plan and any Options granted hereunder shall be void and of no force or effect.
18. Final Issuance Date. No Option shall be granted under the Plan after
June 27, 2006.
19. Gender. Throughout this Plan, unless the context otherwise requires,
the masculine gender includes the feminine and neuter, and the neuter gender
includes the masculine and feminine.
12
<PAGE> 1
EXHIBIT 4.2
OPTION CERTIFICATE
INCENTIVE STOCK OPTION
(Non-Assignable)
For ___________ Shares
To Purchase Common Stock of
WFS FINANCIAL INC
Issued Pursuant to the Amended and Restated 1996
Stock Option Plan of WFS Financial Inc
(the "Plan")
THIS CERTIFIES that on ___________________________________, (the "date of
grant") ________________________ (the "Holder") was granted an option (the
"Option") to purchase at the Option Price of $________________ per share, all or
any part of ______________________ fully paid and non-assessable shares (the
"Shares") of the common stock, without par value, of WFS Financial Inc, a
California corporation (the "Company"), upon and subject to the following terms
and conditions:
1. DEFINITION. Unless otherwise indicated herein to the contrary,
capitalized terms used in this Option Certificate (the "Option Certificate")
shall have the same meaning as in the Plan.
2. EXERCISE OF OPTION.
2.1 The Option shall expire on ________________________, unless the
Plan provides for earlier termination (the "Expiration Date").
2.2 The Option may be exercised or surrendered during the Holder's
lifetime only by the Holder. The Option shall not be transferable by the Holder
otherwise than by will or by the laws of descent and distribution.
2.3 The Option shall be exercisable in installments on or after the
exercise date for each installment (the "Exercise Date") and on or before the
Expiration Date in accordance with the Plan and the following schedule:
Exercise Number of Shares Available
Dates for Purchase
-------- --------------------------
---------------------- --------------------------
<PAGE> 2
---------------------- --------------------------
---------------------- --------------------------
---------------------- --------------------------
On and after each Exercise Date stated above in this Paragraph 2, the
maximum number of Shares that may be purchased by Holder upon exercise of the
Option is the number of Shares set forth opposite that date, plus the number of
Shares set forth opposite each prior exercise date, less the aggregate number of
Shares previously purchased by Holder pursuant to the terms of this Option
Certificate. However, in no event may the Option be exercised prior to the
approval of the Plan pursuant to Paragraph 17 thereof.
3. EXERCISE
3.1 Delivery of Notice. The Option shall be exercised by the delivery
of a completed written notice duly signed by the Holder in the form attached
hereto as Exhibit 3.1, together with this Option Certificate and the full
purchase price of the Shares purchased pursuant to the exercise of the Option,
to the Corporate Secretary of the Company or such other officer of the Company
appointed for the purpose of receiving the same. The Option may not be exercised
at any time when the exercise or payment thereof may result in the violation of
any law or governmental order or regulation.
3.2 Payment. Payment for the Shares purchased pursuant to the
exercise of the Option shall be made in full at the time of the exercise of the
Option by any one or more of the following methods: (a) in cash, (b) by
certified check payable to the order of the Company, (c) by Shares duly endorsed
over to the Company (which Shares shall be valued at their Fair Market Value as
of the date preceding the date the Option is exercised) or (d) any combination
of such methods of payment, which together amount to the full exercise price of
the Shares as to which the Option is being exercised.
3.3 Delivery of Stock Certificate and Return of Option Certificate.
Within a reasonable time after the exercise of the Option, the Company shall
cause to be delivered to the person entitled thereto, a certificate for the
Shares purchased pursuant to the exercise of the Option. If the Option shall
have been exercised with respect to less than all of the Shares subject to the
Option, the Company also shall cause to be delivered to the person entitled
thereto a new Option Certificate in replacement of the Option Certificate, if
surrendered at the time of the exercise of the Option, indicating the number of
Shares with respect to which the Option remains available for exercise, or this
Option Certificate shall be endorsed to give effect to the partial exercise of
the Option.
3.4 Withholding. In the event that the Holder elects to exercise the
Option or any part thereof, and if the Company or a Subsidiary shall be required
to
2
<PAGE> 3
withhold any amounts by reason of any federal, state, or local tax laws, rules
or regulations in respect of the issuance of Shares to the Holder pursuant to
the Option, the Company or such Subsidiary shall be entitled to deduct and
withhold such amounts from any payments to be made to the Holder. In any event,
the Holder shall make available to the Company or such Subsidiary, promptly when
requested by the Company or such Subsidiary, sufficient funds to meet the
requirements of such withholding, and the Company or such Subsidiary shall be
entitled to take and authorize such steps as it may deem advisable to make such
funds available to the Company or such Subsidiary out of any funds or property
due or to become due to the Holder.
4. TERMINATION OF EMPLOYMENT
4.1 All or any part of the Option, to the extent unexercised, shall
terminate immediately upon the cessation or termination for any reason of the
Holder's employment by the Company and all Subsidiaries (including circumstances
under which a Subsidiary employing the Holder ceases to be a Subsidiary or is
liquidated and the Holder does not continue to be employed by the Company or
another Subsidiary), regardless of whether the Holder is or remains a Director,
except that the Holder shall have until the end of the three (3) months
following the cessation or termination of his employment with the Company and
all Subsidiaries, and no longer, to exercise any portion of the Option that he
could have exercised on the day on which such employment ceased or terminated;
provided, that such exercise must be accomplished prior to the expiration of the
term of the Option.
4.2 Notwithstanding Paragraph 4.1, if the cessation or termination of
the Holder's employment is due to the permanent and total disability of the
Holder within the meaning of Internal Revenue Code Section 22(e)(3), the
existence of which permanent and total disability shall be determined by the
Committee in its sole discretion (which determination by the Committee shall be
conclusive), the Holder shall have the privilege of exercising the portion of
the Option which is unexercised at the time of such cessation or termination,
but only to the extent that the Option is then exercisable, within twelve (12)
months of such cessation or termination; provided, however, that such exercise
must be accomplished prior to the expiration of the term of the Option.
4.3 Notwithstanding Paragraph 4.1, if the cessation of the Holder's
employment is due to death, the representative of the estate or the heirs of the
deceased Holder, shall have the privilege of exercising the portion of the
Option which is unexercised at the time of such death, but only to the extent
that the Option is then exercisable, within twelve (12) months of the Holder's
death; provided, however, that such exercise must be accomplished prior to the
expiration of the term of the Option.
4.4 Notwithstanding Paragraph 4.1, if the employment of the Holder
with the Company or a Subsidiary shall be terminated because of the Holder's
violation of the duties of such employment with the Company or a Subsidiary as
he may from time to time have, the existence of which violation shall be
determined by the
3
<PAGE> 4
Committee in its sole discretion (which determination by the Committee shall be
conclusive), the portion of the Option which is unexercised at the time of the
termination of his employment shall terminate immediately upon such termination,
and the Holder shall have no right after such termination to exercise any
portion of the Option he might have exercised prior to the termination of his
employment.
5. CHANGES IN SECURITIES OR CORPORATION ORGANIZATION.
5.1 Adjustment. If prior to the complete exercise of the Option there
shall be declared and paid a stock dividend upon the Shares or if the Shares
shall be split-up, converted, exchanged, reclassified, combined or in any way
substituted for, the Option, to the extent that it has not been exercised, shall
entitle the Holder upon the future exercise of the Option to such number and
kind of securities or other property subject to the terms of the Option to which
he would have been entitled had he actually owned the Shares subject to the
unexercised portion of the Option at the time of the occurrence of such stock
dividend, split-up, conversion, exchange, reclassification, combination or
substitution, and the aggregate purchase price upon the future exercise of the
Option shall be the same as if the original Shares were being purchased
hereunder. Any fractional Shares or other securities which may be payable upon
the exercise of the Option as a result of such adjustment shall be payable in
cash based upon the Fair Market Value of such Shares or other securities as of
the date of such exercise. Notwithstanding any other provisions of this
Paragraph 5.1 or the Plan to the contrary, the declaration of a stock dividend
upon the Shares occurring at any time within 30 days before or after the date of
the grant of the Option and the consequent distribution of such stock dividend,
shall not entitle the Holder to any adjustment in the number of Shares which
Holder would be entitled to receive upon exercise of the Option, which shall
remain unchanged from the number specified in this Option Certificate; provided,
however, that the declaration of a stock dividend on the Shares on or after 31
days following the date of grant of the Option and the consequent distribution
of such stock dividend shall entitle the Holder to the adjustment of the number
of Shares that the Holder would be entitled to receive upon exercise of the
Option as provided in this Paragraph 5.1 and the Plan.
5.2 Acquisition or Reorganization. In the event of an acquisition by
a person or entity, or a group of persons or entities acting in conjunction, of
more than fifty percent (50%) of the issued and outstanding shares of stock of
the Company have ordinary voting power (excluding acquisitions by any person or
entity or a group of persons or entities holding more than 50% of such stock on
June 28, 1996), or a sale, lease, transfer or other disposition of all or
substantially all of the assets of the Company, or a merger or consolidation of
the Company into or with any other person or entity which results in the
acquisition of the Company by a non-affiliated person or entity, or any other
event which would similarly constitute an acquisition of the Company by a
non-affiliated person or entity, in the event provision is not made in the
transaction for the continuance of the Plan and for the assumption of Options
theretofore granted or the substitution for those Options of new options
covering the securities of a successor corporation or a parent or subsidiary
thereof, or in the event
4
<PAGE> 5
such provision is made but the Company has not agreed to it, Holder shall be
entitled, during the period thirty (30) days prior to the effective date of the
consummation of any such transaction, to purchase, in whole or in part, the full
number of Shares under the Option which Holder would otherwise have been
entitled to purchase during the remaining term of the Option and without regard
to Exercise Dates or any otherwise applicable exercise restrictions set forth in
this Option Certificate or the Plan (other than the Expiration Date). To the
extent that any such exercise relates to stock that is not otherwise available
for purchase through the exercise of the Option by Holder at that time, the
exercise shall be contingent upon the consummation of the transaction.
6. No Other Rights. Nothing contained herein shall be construed to
confer upon the Holder any right to be continued in the employ of the Company or
its Subsidiaries or derogate from any right of the Company or its Subsidiaries
to retire, request the resignation of, or discharge the Holder at any time, with
or without cause. Holder is not entitled to any rights as a stockholder with
respect to any Shares issuable hereunder until a certificate or certificates
representing those shares are issued and delivered to him.
7. Compliance with Law. Before issuing and delivering any Shares to the
Holder, upon the exercise of the Option, the Company may (a) require the Holder
to give assurances that the Shares are being purchased for investment and not
with a view to resale or distribution and will not be transferred in violation
of applicable securities laws; (b) restrict the transferability of such Shares,
and require a legend to such effect to be placed on the certificates
representing such Shares, or (c) condition the exercise of the Option or the
issuance and delivery of Shares upon the listing, registration or qualification
of the Shares covered by the Option upon a securities exchange or under
applicable securities laws.
8. Amendments. The Board of Directors or the Committee, with the consent
of the Holder as to any adverse changes, may amend at any time from time to
time, the terms and conditions of the Option.
9. Restriction on Disposition. The Option may not be sold, pledged,
assigned, or transferred in any manner other than by will or the laws of descent
or distribution and may be exercised during the lifetime of Holder only by
Holder. Any attempt to transfer the Option or any interest therein by
assignment, pledge, hypothecation, or otherwise, except as herein provided, or
the levy of any execution, attachment, or similar process upon the Option, shall
be null and void and without effect.
10. Notice. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, addressed as follows: to the Corporate
Secretary of the Company at the Company's offices at 23 Pasteur Road, Irvine,
California 92718-3804, or at such other address as the Company, or any other
such person, by notice to the Holder, may designate in writing from time to
time; to the Holder at the address shown below his signature on this Option
Certificate, or at such other address as the Holder, by notice to
5
<PAGE> 6
the Company, may designate in writing from time to time. Notices shall be
effective upon receipt.
11. Incorporation of Plan. The Option and this Option Certificate are
issued pursuant to and are subject to all of the terms and conditions of the
Plan, the terms, conditions and definitions of which are hereby incorporated as
though set forth at length, and the receipt of a copy of which the Holder hereby
acknowledges by his signature below. A determination by the Committee as to any
questions which may arise with respect to the interpretation of the provisions
of the Option or of the plan shall be final. The Committee may authorize and
establish such rules, regulations and revisions thereof not inconsistent with
the provisions of the Plan, as it may deem advisable.
12. Complete Agreement, Modification and Construction. This Option
Certificate comprises the entire understanding between the parties, may not be
modified or terminated orally, and shall be construed and enforced under the
laws of the State of California.
13. Gender. Throughout this Option Certificate, unless the context
otherwise requires, the masculine gender includes the feminine and neuter, and
the neuter gender includes the masculine and feminine.
This Agreement has been executed at Irvine, California this ________ day
of _______________, ______.
HOLDER WFS FINANCIAL INC
___________________________________ By: _________________________________
[Optionee Name] Joy Schaefer
[Optionee Title] President
[Company/Subsidiary Name]
[Address]
6
<PAGE> 7
EXHIBIT 3.1
Notice of Exercise of Option
__________________, the Holder of an Option to purchase at the Option
Price of $________________ per share, all or any part of ______________________
fully paid and non-assessable shares (the "Shares") of the common stock, without
par value, of WFS Financial Inc, a California corporation (the "Company"),
granted to Holder pursuant to the Company's Amended and Restated 1996 Stock
Option Plan, hereby gives notice of the exercise of the Option and purchase of
Shares as follows:
Numbers of Shares Purchased Pursuant to Option: _________________
Number of Shares Remaining Under Option: _________________
The purchase of Shares shall be effective as of ________________,
______. Attached to this Notice is the sum of $_____________________ in the form
of _____________ in full payment for the purchased Shares and the Option
Certificate evidencing the Option.
Dated: ___________, ______
___________________________________
[Optionee Name]
7
<PAGE> 1
EXHIBIT 4.3
OPTION CERTIFICATE
NON-QUALIFIED STOCK OPTION
(Non-Assignable)
For ___________ Shares
To Purchase Common Stock of
WFS FINANCIAL INC
Issued Pursuant to the Amended and Restated 1996
Stock Option Plan of WFS Financial Inc
(the "Plan")
THIS CERTIFIES that on ___________________________________, (the "date of
grant") ________________________ (the "Holder") was granted an option (the
"Option") to purchase at the Option Price of $________________ per share, all or
any part of ______________________ fully paid and non-assessable shares (the
"Shares") of the common stock, without par value, of WFS Financial Inc, a
California corporation (the "Company"), upon and subject to the following terms
and conditions:
1. DEFINITION. Unless otherwise indicated herein to the contrary,
capitalized terms used in this Option Certificate (the "Option Certificate")
shall have the same meaning as in the Plan.
2. EXERCISE OF OPTION.
2.1 The Option shall expire on __________________ unless the Plan
provides for earlier termination (the "Expiration Date").
2.2 The Option may be exercised or surrendered during the Holder's
lifetime only by the Holder. The Option shall not be transferable by the Holder
otherwise than by will or by the laws of descent and distribution.
2.3 The Option shall be exercisable in installments on or after the
exercise date for each installment (the "Exercise Date") and on or before the
Expiration Date in accordance with the Plan and the following schedule:
Exercise Number of Shares Available
Dates for Purchase
-------- --------------------------
---------------------- --------------------------
<PAGE> 2
---------------------- --------------------------
---------------------- --------------------------
---------------------- --------------------------
On and after each Exercise Date stated above in this Paragraph 2, the
maximum number of Shares that may be purchased by Holder upon exercise of the
Option is the number of Shares set forth opposite that date plus the number of
Shares set forth opposite each prior exercise date, less the aggregate number of
Shares previously purchased by Holder pursuant to the terms of this Option
Certificate. However, in no event may the Option be exercised prior to the
approval of the Plan pursuant to Paragraph 17 thereof.
3. EXERCISE
3.1 Delivery of Notice. The Option shall be exercised by the delivery
of a completed written notice duly signed by the Holder in the form attached
hereto as Exhibit 3.1, together with this Option Certificate and the full
purchase price of the Shares purchased pursuant to the exercise of the Option,
to the Corporate Secretary of the Company or such other officer of the Company
appointed for the purpose of receiving the same. The Option may not be exercised
at any time when the exercise or payment thereof may result in the violation of
any law or governmental order or regulation.
3.2 Payment. Payment for the Shares purchased pursuant to the
exercise of the Option shall be made in full at the time of the exercise of the
Option by any one or more of the following methods: (a) in cash, (b) by
certified check payable to the order of the Company, (c) by Shares duly endorsed
over to the Company (which Shares shall be valued at their Fair Market Value as
of the date preceding the date the Option is exercised) or (d) any combination
of such methods of payment, which together amount to the full exercise price of
the Shares as to which the Option is being exercised.
3.3 Delivery of Stock Certificate and Return of Option Certificate.
Within a reasonable time after the exercise of the Option, the Company shall
cause to be delivered to the person entitled thereto, a certificate for the
Shares purchased pursuant to the exercise of the Option. If the Option shall
have been exercised with respect to less than all of the Shares subject to the
Option, the Company also shall cause to be delivered to the person entitled
thereto a new Option Certificate in replacement of the Option Certificate, if
surrendered at the time of the exercise of the Option, indicating the number of
Shares with respect to which the Option remains available for exercise, or this
Option Certificate shall be endorsed to give effect to the partial exercise of
the Option.
3.4 Withholding. In the event that the Holder elects to exercise the
Option or any part thereof, and if the Company or a Subsidiary shall be required
to withhold any amounts by reason of any federal, state, or local tax laws,
rules or regulations in respect of the issuance of Shares to the Holder pursuant
to the Option, the
2
<PAGE> 3
Company or such Subsidiary shall be entitled to deduct and withhold such amounts
from any payments to be made to the Holder. In any event, the Holder shall make
available to the Company or such Subsidiary, promptly when requested by the
Company or such Subsidiary, sufficient funds to meet the requirements of such
withholding, and the Company or such Subsidiary shall be entitled to take and
authorize such steps as it may deem advisable to make such funds available to
the Company or such Subsidiary out of any funds or property due or to become due
to the Holder.
4. TERMINATION OF EMPLOYMENT
4.1 All or any part of the Option, to the extent unexercised, shall
terminate immediately upon (i) the cessation or termination for any reason of
the Holder's employment by the Company and all Subsidiaries (including
circumstances under which a Subsidiary employing the Holder ceases to be a
Subsidiary or is liquidated and the Holder does not continue to be employed by
the Company or another Subsidiary), unless the Option holder as of the date of
such cessation or termination and immediately thereafter is a Director, or (ii)
upon the Holder ceasing to be a Director, unless on the date of such cessation
and immediately thereafter he is an Employee of the Company or a Subsidiary;
except that the Holder shall have until the end of the three (3) months
following the cessation or termination of employment or following his ceasing to
be a Director, respectively, and no longer, to exercise any portion of the
Option that he could have exercised on the day on which such employment ceased
or terminated, or he ceased to be a Director, respectively; provided, that such
exercise must be accomplished prior to the expiration of the term of the Option.
4.2 Notwithstanding Paragraph 4.1, if the cessation or termination of
the Holder's employment or the Holder's ceasing to be a Director is due to the
permanent and total disability of the Holder within the meaning of Internal
Revenue Code Section 22(e)(3), the existence of which permanent and total
disability shall be determined by the Committee in its sole discretion (which
determination by the Committee shall be conclusive), the Holder shall have the
privilege of exercising the portion of the Option which is unexercised at the
time of such cessation or termination, but only to the extent that the Option is
then exercisable, within twelve (12) months of such cessation or termination;
provided, however, that such exercise must be accomplished prior to the
expiration of the term of the Option.
4.3 Notwithstanding Paragraph 4.1, if the cessation of the Holder's
employment or the Holder's ceasing to be a Director is due to death, the
representative of the estate or the heirs of the deceased Holder, shall have the
privilege of exercising the portion of the Option which is unexercised at the
time of such death, but only to the extent that the Option is then exercisable,
within twelve (12) months of the Holder's death; provided, however, that such
exercise must be accomplished prior to the expiration of the term of the Option.
3
<PAGE> 4
4.4 Notwithstanding Paragraph 4.1, if the employment of the Holder
with the Company or a Subsidiary shall be terminated because of the Holder's
violation of the duties of such employment with the Company or a Subsidiary as
he may from time to time have, the existence of which violation shall be
determined by the Committee in its sole discretion (which determination by the
Committee shall be conclusive), the portion of the Option which is unexercised
at the time of the termination of his employment shall terminate immediately
upon such termination, and the Holder shall have no right after such termination
to exercise any portion of the Option he might have exercised prior to the
termination of his employment.
5. CHANGES IN SECURITIES OR CORPORATION ORGANIZATION.
5.1 Adjustment. If prior to the complete exercise of the Option there
shall be declared and paid a stock dividend upon the Shares of if the Shares
shall be split-up, converted, exchanged, reclassified, combined or in any way
substituted for, the Option, to the extent that it has not been exercised, shall
entitle the Holder upon the future exercise of the Option to such number and
kind of securities or other property subject to the terms of the Option to which
he would have been entitled had he actually owned the Shares subject to the
unexercised portion of the Option at the time of the occurrence of such stock
dividend, split-up, conversion, exchange, reclassification, combination or
substitution, and the aggregate purchase price upon the future exercise of the
Option shall be the same as if the original Shares were being purchased
hereunder. Any fractional Shares or other securities which may be payable upon
the exercise of the Option as a result of such adjustment shall be payable in
cash based upon the Fair Market Value of such Shares or other securities as of
the date of such exercise. Notwithstanding any other provisions of this
Paragraph 5.1 or the Plan to the contrary, the declaration of a stock dividend
upon the Shares occurring at any time within 30 days before or after the date of
the grant of the Option and the consequent distribution of such stock dividend,
shall not entitle the Holder to any adjustment in the number of Shares which
Holder would be entitled to receive upon exercise of the Option, which shall
remain unchanged from the number specified in this Option Certificate; provided,
however, that the declaration of a stock dividend on the Shares on or after 31
days following the date of grant of the Option and the consequent distribution
of such stock dividend shall entitle the Holder to the adjustment of the number
of Shares that the Holder would be entitled to receive upon exercise of the
Option as provided in this Paragraph 5.1 and the Plan.
5.2 Acquisition or Reorganization. In the event of an acquisition by
a person or entity, or a group of persons or entities acting in conjunction, of
more than fifty percent (50%) of the issued and outstanding shares of stock of
the Company have ordinary voting power (excluding acquisitions by any person or
entity or a group of persons or entities holding more than 50% of such stock on
June 28, 1996), or a sale, lease, transfer or other disposition of all or
substantially all of the assets of the Company, or a merger or consolidation of
the Company into or with any other person or entity which results in the
acquisition of the Company by a non-affiliated person or entity, or any other
event which
4
<PAGE> 5
would similarly constitute an acquisition of the Company by a non-affiliated
person or entity, in the event provision is not made in the transaction for the
continuance of the Plan and for the assumption of Options theretofore granted or
the substitution for those Options of new options covering the securities of a
successor corporation or a parent or subsidiary thereof, or in the event such
provision is made but the Company has not agreed to it, Holder shall be
entitled, during the period thirty (30) days prior to the effective date of the
consummation of any such transaction, to purchase, in whole or in part, the full
number of Shares under the Option which Holder would otherwise have been
entitled to purchase during the remaining term of the Option and without regard
to Exercise Dates or any otherwise applicable exercise restrictions set forth in
this Option Certificate or the Plan (other than the Expiration Date). To the
extent that any such exercise relates to stock that is not otherwise available
for purchase through the exercise of the Option by Holder at that time, the
exercise shall be contingent upon the consummation of the transaction.
6. No Other Rights. Nothing contained herein shall be construed to
confer upon the Holder any right to be continued in the employ of the Company or
its Subsidiaries or derogate from any right of the Company or its Subsidiaries
to retire, request the resignation of, or discharge the Holder at any time, with
or without cause. Holder is not entitled to any rights as a stockholder with
respect to any Shares issuable hereunder until a certificate or certificates
representing those shares are issued and delivered to him.
7. Compliance with Law. Before issuing and delivering any Shares to the
Holder, upon the exercise of the Option, the Company may (a) require the Holder
to give assurances that the Shares are being purchased for investment and not
with a view to resale or distribution and will not be transferred in violation
of applicable securities laws; (b) restrict the transferability of such Shares,
and require a legend to such effect to be placed on the certificates
representing such Shares, or (c) condition the exercise of the Option or the
issuance and delivery of Shares upon the listing, registration or qualification
of the Shares covered by the Option upon a securities exchange or under
applicable securities laws.
8. Amendments. The Board of Directors or the Committee, with the consent
of the Holder as to any adverse changes, may amend at any time from time to
time, the terms and conditions of the Option.
9. Restriction on Disposition. The Option may not be sold, pledged,
assigned, or transferred in any manner other than by will or the laws of descent
or distribution and may be exercised during the lifetime of Holder only by
Holder. Any attempt to transfer the Option or any interest therein by
assignment, pledge, hypothecation, or otherwise, except as herein provided, or
the levy of any execution, attachment, or similar process upon the Option, shall
be null and void and without effect.
10. Notice. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, addressed as follows: to the Corporate
Secretary of the Company at the Company's
5
<PAGE> 6
offices at 23 Pasteur Road, Irvine, California 92718-3804, or at such other
address as the Company, or any other such person, by notice to the Holder, may
designate in writing from time to time; to the Holder at the address shown below
his signature on this Option Certificate, or at such other address as the
Holder, by notice to the Company, may designate in writing from time to time.
Notices shall be effective upon receipt.
11. Incorporation of Plan. The Option and this Option Certificate are
issued pursuant to and are subject to all of the terms and conditions of the
Plan, the terms, conditions and definitions of which are hereby incorporated as
though set forth at length, and the receipt of a copy of which the Holder hereby
acknowledges by his signature below. A determination by the Committee as to any
questions which may arise with respect to the interpretation of the provisions
of the Option or of the plan shall be final. The Committee may authorize and
establish such rules, regulations and revisions thereof not inconsistent with
the provisions of the Plan, as it may deem advisable.
12. Complete Agreement, Modification and Construction. This Option
Certificate comprises the entire understanding between the parties, may not be
modified or terminated orally, and shall be construed and enforced under the
laws of the State of California.
6
<PAGE> 7
13. Gender. Throughout this Option Certificate, unless the context
otherwise requires, the masculine gender includes the feminine and neuter, and
the neuter gender includes the masculine and feminine.
This Agreement has been executed at Irvine, California this ________ day
of ___________________, _______.
HOLDER WFS FINANCIAL INC
________________________________ By: _____________________________________
[Optionee Name] Joy Schaefer
[Optionee Title] President
[Company/Subsidiary Name]
[Address]
7
<PAGE> 8
EXHIBIT 3.1
Notice of Exercise of Option
__________________, the Holder of an Option to purchase at the Option
Price of $________________ per share, all or any part of ______________________
fully paid and non-assessable shares (the "Shares") of the common stock, without
par value, of WFS Financial Inc, a California corporation (the "Company"),
granted to Holder pursuant to the Company's Amended and Restated 1996 Stock
Option Plan, hereby gives notice of the exercise of the Option and purchase of
Shares as follows:
Numbers of Shares Purchased Pursuant to Option: _________________
Number of Shares Remaining Under Option: _________________
The purchase of Shares shall be effective as of ________________,
______. Attached to this Notice is the sum of $_____________________ in the form
of _____________ in full payment for the purchased Shares and the Option
Certificate evidencing the Option.
Dated: ___________, ______
_______________________________
[Optionee Name]
8
<PAGE> 1
EXHIBIT 5
LAW OFFICES
MITCHELL, SILBERBERG & KNUPP LLP
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
TRIDENT CENTER
11377 WEST OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064-1683
TELEPHONE: (310) 312-2000
FAX: (310) 312-3100
FILE NO: 28376-5
DOC. NO: Opinion3.ltr
November 12, 1997
WFS Financial Inc
23 Pasteur Road
Irvine, California 92713-9762
Re: Registration Statement on Form S-8
Dear Sirs:
You have requested the opinion of this firm with respect to certain
matters in connection with the Registration Statement on Form S-8 (the
"Registration Statement") proposed to be filed by you under the Securities Act
of 1933, as amended (the "Securities Act"), for the purpose of registering the
offer and sale of up to 550,000 additional authorized but unissued shares (the
"Shares") of Common Stock, without par value (the "Common Stock"), of WFS
Financial Inc (the "Company") issuable upon exercise of stock options (the
"Options") granted under the Company's Amended and Restated 1996 Stock Option
Plan (the "Option Plan"). An aggregate of 550,000 shares of Common Stock were
previously registered by a Registration Statement on Form S-8 (File No.
333-07485) filed on July 3, 1996 and a Registration Statement on Form S-8 (File
No. 333-08991) filed on July 26, 1996.
For the purpose of rendering the opinions contained in this opinion
letter, we have examined copies of:
(a) The Option Plan;
(b) Resolutions of the Board of Directors of the Company
authorizing, inter alia, the issuance of the Shares upon the exercise
of Options;
(c) The Registration Statement; and
(d) Such other corporate records and other instruments as we
have deemed necessary or appropriate.
<PAGE> 2
In the course of our examinations and investigations, we have assumed the
genuineness of all signatures on the original documents, and the due execution
and delivery of all documents requiring due execution and delivery for the
effectiveness thereof.
Based upon and subject to the foregoing, and in reliance thereon, and
subject to the assumptions set forth herein, it is our opinion that, upon
approval of the Option Plan by the shareholders of the Company on or prior to
October 27, 1998, the issuance of the Shares will be duly authorized and when
issued, delivered and paid for in accordance with the terms of the Option Plan
and Options granted in accordance with the terms thereof, the Shares will be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Registration
Statement. In giving our consent, we do not hereby admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules or regulations thereunder. This opinion letter is given as of
the date hereof and we assume no obligation to advise you of any change that may
hereafter be brought to our attention.
Very truly yours,
/s/ MITCHELL, SILBERBERG & KNUPP LLP
MITCHELL, SILBERBERG & KNUPP LLP
<PAGE> 1
[SUBJECT TO APPROVAL BY ERNST & YOUNG] EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement
(Form S-8 No. ) pertaining to the Amended and Restated 1996 Stock Option
Plan and to the incorporation by reference therein of our report dated
January 28, 1997, with respect to the consolidated financial statements of
WFS Financial Inc in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
November 12, 1997
