EXHIBIT 10.39
THE OPTION AND COMMON STOCK REFERRED TO HEREIN HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, THE FLORIDA SECURITIES ACT, AS AMENDED, OR THE LAWS
OF ANY OTHER STATE, AND ARE BEING GRANTED PURSUANT TO EXEMPTIONS FROM
REGISTRATION UNDER THAT ACT AND SUCH STATE LAWS. OPTIONS OR SHARES OF STOCK
ACQUIRED BY OPTIONEE MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE OPTIONS OR SHARES OF STOCK UNDER THAT
ACT OR SUCH STATE LAWS AS MAY BE APPLICABLE, OR PURSUANT TO EXEMPTIONS FROM SAID
REGISTRATION UNDER SAID ACT AND SAID LAWS. FURTHER, THIS AGREEMENT CONTAINS
SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY OF THE OPTIONS AND SHARES OF STOCK.
SMART CHOICE AUTOMOTIVE GROUP, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") effective as of the
11TH day of April, 1997, by and among the XXXXXX-XXXXX CHOICE HOLDINGS
MANAGEMENT TRUST under agreement dated January 29, 1997, Xxxxxx X. Xxxxxx,
settlor, and Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx, trustees, and the XXXXXX-XXXXX
CHOICE HOLDINGS MANAGEMENT TRUST under agreement dated January 29, 1997, Xxxxxx
X. Xxxxxx, settlor, and Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx, trustees (such
trusts are referred to herein as the "Grantors"), XXXXXX XXXXXXX, an individual,
(the "Optionee") and SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida corporation
(the "Company").
WITNESSETH:
WHEREAS, the Company desires to employ the Optionee; and
WHEREAS, the Grantors and the Company believe that the attraction and
retention of key employees such as Optionee is essential to the Company's growth
and success; and
WHEREAS, in order to induce Optionee to serve as an Employee of the
Company, the Grantors hereby provide Optionee with the following additional
incentives, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in this
Agreement, the Grantors hereby grant to Optionee, the option to purchase a total
of 80,000 shares (the "Option Shares") of the Company's common stock, par value
$.01 per share (the "Common Stock"), 40,000 shares from each Grantor (the
"Option"), at the exercise price of $2.00 per share (the "Option Price"). The
Option shall be exercisable, in whole or in part, for a period of ten (10) years
(the "Exercise Period"), which period shall commence on the date of execution of
this Agreement (the "Execution Date"). The Option shall be fully vested and
exercisable as to all the Option Shares on the Execution Date for the entire
Exercise Period. None of the Options are intended to be "incentive stock
options" as defined in Section 422(b) of the Internal Revenue Code.
2. TERMINATION OF THE OPTION.
(a) The Option shall terminate and no longer be exercisable upon the
expiration of the Exercise Period set forth above.
(b) Termination in the event of death, permanent disability or termination
of status as an employee.
(i) If Optionee dies while an employee of the Company or within three (3)
months after termination of his status as an employee because of his permanent
disability (as defined below), his Option may be exercised, to the extent that
the Optionee shall have been entitled to do so on the date of his death, by the
person or persons to whom the Optionee's right under the Option passes by will
or applicable law, or if no such person has such right, by his executors or
administrators, at any time or from time to time, but not later than the
expiration date specified in Section 1 or three (3) months after the appointment
or qualification of an executor of Optionee's estate, whichever is earlier.
(ii) If Optionee's status as an employee of the Company shall terminate
because of his permanent disability, he may exercise his Option to the extent
that he shall have been entitled to do so at the date of such termination, at
any time or from time to time, but not later than the expiration date specified
in Section 1 or three (3) months after termination of employment, whichever date
is earlier.
(iii) If Optionee's status as an employee of the Company shall terminate
involuntarily other than for cause, death, or total disability, all rights to
exercise his Option, to the extent that he shall have been entitled to do so at
the date of such termination, shall terminate at the expiration date specified
in Section 1 or three months after termination of employment, whichever date is
earlier.
(iv) If Optionee's status as an employee of the Company shall terminate for
cause (as defined below), all rights to exercise his Options shall terminate no
later than sixty (60) days after such termination.
(c) "Termination for cause" shall be defined as set forth in the Employment
Agreement between Company and Optionee of even date herewith. "Permanent
disability" shall be defined as set forth in the Employment Agreement between
Company and Optionee of even date herewith.
3. Exercise. Optionee (or in the case of Optionee's death or disability,
the legal representative of Optionee) may exercise the Option only by giving
timely notice of the exercise of an Option prior to the expiration or
termination of the Exercise Period to the Grantor c/o Smart Choice Automotive
Group, Inc., 0000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000. Such
notice shall state the number of shares to be purchased which are attributable
to the Option which is being exercised, and shall be accompanied by the full
purchase price for such shares, payable in U.S. Dollars by certified check or
bank draft, unless the Grantor shall permit payment of the purchase price in
another manner.
4. DELIVERY OF OPTION SHARES. As soon as reasonably practicable after
receipt by the Grantor of a timely notice of exercise of any of the Options
hereunder, and payment therefor, the Grantor shall transfer to Optionee or his
legal representative(s), as the case may be, one or more certificate(s) for the
number of shares with respect to which the Options shall have been so exercised.
The Grantor represents to Optionee that it has sufficient shares to grant the
Option set forth herein.
5. RESTRICTIONS UPON TRANSFER.
(a) Neither the Optionee nor any other person or entity shall have any
interest in any specific asset or assets or stock of the Company by reason of
the granting of the Options. Any attempt to assign or to transfer this Agreement
or the Options granted hereunder, whether voluntarily or involuntarily, by
operation of law or otherwise, shall be of no further force or effect and no
interest or right hereunder shall vest in any other person. Nothing in this
Agreement shall be deemed to limit Optionee's right to transfer this Agreement
or the Option Shares by will or in accordance with the laws of devise, descent
and distribution.
(b) Nothing in this Agreement shall be construed in limitation of any
restrictions upon transfer of any of the Option Shares contained elsewhere,
including any restrictions that may be contained in the Certificate of
Incorporation or the By-Laws of the Company.
(c) Nothing in this Agreement shall be construed as a modification of any
existing agreements with respect to the gift, sale, purchase, transfer, pledge,
hypothecation, or other disposition or encumbrance of the Option Shares between
the parties to this Agreement, or between or among either or both of the parties
to this Agreement and one or more persons not party to this Agreement.
(d) The Optionee acknowledges that the certificate evidencing ownership of
the Common Stock will be stamped or otherwise imprinted on the face thereof with
a legend in substantially the following form:
"The shares represented by this Certificate have not been registered
under the federal Securities Act of 1933, as amended (the "Act") or
any state securities act. No sale, offer to sell or transfer of the
shares shall be made unless a registration statement under the Act,
and any applicable state statute, with respect to the shares is then
in effect or an exemption from the registration requirements of such
Act or state statute is then in fact applicable to the shares."
(e) Any legend endorsed on a certificate pursuant to Section 5(d) hereof
and the stop transfer instructions with respect to the Option Shares shall be
removed and the Company shall issue a certificate without such legend to the
holder thereof if such Option Shares are registered under the Securities Act and
a prospectus meeting the requirements of Section 10 of the Securities Act is
available.
(f) The restrictions described in any legend endorsed on a certificate
pursuant to Section 5(d) hereof shall be removed at such time as permitted by
Rule 144(k) promulgated under the Securities Act.
(g) (1) If the Company at any time elects or proposes to register any of
its shares of Common Stock (the "Registration Shares") under the 1933 Act on
forms X-0, X-0, X-0 or XX-0, XX-0 or any other form in effect at such time for
the registration of securities to be sold for cash (a "Registration Statement")
with the Securities and Exchange Commission (the "SEC") pursuant to which shares
of Common Stock owned by any other shareholder of the Company are to be
registered, the Company shall give prompt written notice (the "Registration
Notice") to the Optionee of its intention to register the Registration Shares.
(2) Within fifteen (15) days after the Registration Notice shall have been
given to the Optionee, the Optionee may give written notice to the Company of
exercise of all, or a portion of the Option (the "Optionee Notice"), accompanied
by payment of the Option Price in accordance with Section 1 hereof, stating the
number of shares Optionee elects to be included among the Registration Shares
(which number may include shares held by Optionee as a result of prior exercises
of this Option, or otherwise) (the "Optionee's Included Shares").
(3) The Company shall use reasonable efforts to register the Optionee's
Included Shares under the Securities Act of 1933 and any state securities acts,
if necessary, designated by the Optionee in the Optionee Notice. The Company
shall have the right to withdraw and discontinue registration of the Optionee's
Included Shares at any time prior to the effective date of such Registration
Statement if the registration of the Registration Shares is withdrawn or
discontinued.
(4) The Company shall not be required to include any of the Optionee's
Included Shares in any Registration Statement unless the Optionee agrees, if so
requested by the Company, to: (i) offer and sell the Optionee's Included Shares
to or through an underwriter selected by the Company and, to the extent
possible, on substantially the same terms and conditions under which the
Registration Shares are to be offered and sold; (ii) comply with any
arrangements, terms and conditions with respect to the offer and sale of the
Optionee's Included Shares to which the Company may be required to agree; and
(iii) enter into any underwriting agreement containing customary terms and
conditions.
(5) If the offering of the Registration Shares by the Company is, in whole
or in part, an underwritten public offering, and if the managing underwriter
determines and advises the Company in writing that the inclusion in such
Registration Statement of all of the Shares, together with the stock of other
persons who have a right to include their stock in the Registration Statement
(collectively referred to as the "Aggregate Shares"), would adversely affect the
marketability of the offering of the Registration Shares, then the Optionee and
such other holders shall be entitled to register the portion of such number of
Aggregate Shares as the managing underwriter determines may be included without
such adverse effects (collectively, "Aggregate Underwriter Shares"), subject to
the terms, exceptions and conditions of this Section 5(g). The number of
Aggregate Underwriter Shares which the Optionee shall be entitled to register
shall be equal to the number of Aggregate Underwriter Shares multiplied by a
fraction, the numerator of which is the number of Optionee's Included Shares and
the denominator of which is the number of Aggregate Shares.
(6) The Company shall bear all costs and expenses of registration of the
Registration Shares, including Optionee's Included Shares.
(7) It shall be a condition precedent to the Company's obligation to
register any of Optionee's Included Shares that the Optionee shall provide the
Company with all information and documents, and shall execute, acknowledge, seal
and deliver all documents reasonably necessary, to enable the Company to comply
with the 1933 Act, the State Acts, and all applicable laws, rules and
regulations of the SEC or of any state securities law authorities.
6. RIGHTS AS STOCKHOLDER.
(a) Optionee shall have none of the rights of a stockholder with respect to
any of the Option Shares until any Option granted herein shall have been
exercised.
(b) Nothing in this Agreement shall affect in any way the rights or powers
of the Company, or any parent or subsidiary Company, or any of the directors or
stockholders of the Company, to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stocks or other
classes of securities ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of the Company's assets or business, or any grant of
options to purchase securities of the Company otherwise than under this
Agreement, or to effect any other corporate act or proceeding, whether of a
similar character or otherwise.
(c) (i) If the outstanding shares of Common Stock of the Company are
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities of the Company or of another corporation or entity or
shares of a different par value or without par value through a recapitalization,
stock dividend, stock split, reverse stock split or a reorganization under which
the Company is not the surviving entity, an appropriate or proportionate
adjustment shall be made in the number and/or kind of securities allocated to
the Options, without change in the aggregate Option Price applicable to the
unexercised portion of the outstanding Option but with a corresponding
adjustment in the Option Price for each share or other unit of any security
covered by the Option. No adjustment shall occur under this Section 6 by virtue
of the fact that the Company purchases or sells Common Stock or any securities
of the Company at its fair market value (other than pursuant to compensatory
Stock Options) for cash.
(ii) In case the Company shall issue rights or warrants to all holders of
its shares of Common Stock entitling them to subscribe for or to purchase shares
of Common Stock at a price per share which, when added to the amount of
consideration received or receivable by the Company for such rights or warrants
is less than the Current Market Price (as hereinafter defined) per share at the
record date, the number of Option Shares purchasable upon the exercise of the
Option shall be increased so that thereafter, until further adjusted, this
Option shall entitle the Optionee to purchase an additional number of shares
determined as if the Option had been fully exercised and the Optionee were a
record holder entitled to receive such rights or warrants at an option price
which is the same as the per share consideration payable pursuant to such rights
or warrants. Such adjustment shall be made whenever such rights or warrants are
issued, but shall also be effective retroactively as to portions of the Option
exercised between the record date for the determination of shareholders entitled
to receive such rights or warrants and the date such rights or warrants are
issued.
(iii) For the purpose of any computation under Section 6(c)(ii), the
Current Market Price per share of Common Stock at any date shall be (i) if the
shares of Common Stock are listed on any national securities exchange, the
average of the daily closing prices for the fifteen (15) consecutive business
days commencing twenty (20) business days before the date of determination (the
"Trading Period"); (ii) if the shares of Common Stock are not listed on any
national securities exchange but are quoted or reported on the National
Association of Securities Dealers, Inc., Automated Quotation System ("NASDAQ"),
the last quoted price or, if not quoted, the average of the high bid and low
asked price as reported by NASDAQ for the Trading Period, or the daily closing
prices for the Trading Period as reported by NASDAQ, as the case may be; and
(iii) if the shares of Common Stock are neither listed on any national
securities exchange nor quoted or reported on NASDAQ, the higher of (x) the
Exercise Price then in effect, or (y) the tangible book value per share of
Common Stock as of the end of the Company's immediately preceding fiscal year.
(d) In the event of the proposed dissolution or liquidation of the Company,
the Company shall cause the Board of Directors of the Company to notify the
Optionee and the Grantor at least thirty (30)days prior to such proposed action.
To the extent it has not been exercised during such thirty (30) day period, the
Options will terminate as to any unexercised portion thereof immediately prior
to the consummation of such proposed action.
7. REPRESENTATIONS. Optionee will acquire Optionee's shares for Optionee's
own account, for investment only and without a view to resale or distribution
except in compliance with the Securities Act of 1933, as amended, ("Act") and
any applicable state securities laws, and upon the acquisition of the shares,
Optionee will enter into such written representations, warranties and agreements
as the Company or the Grantor may request in order to comply with the Act, any
applicable state securities laws and this Option Agreement. Grantor represents
and warrants that it owns sufficient Common Stock to issue the Option Shares to
the Optionee on exercise of the Option and agrees that it will reserve
sufficient Common Stock to issue the Option Shares to the Optionee on exercise
of the Option.
8. TAX CONSEQUENCES AND WITHHOLDING. Optionee agrees that the Grantor is
not responsible for the tax consequences to Optionee of the granting of the
Options or its subsequent exercise by Optionee, and that it is the
responsibility of Optionee to consult with Optionee's personal tax advisor
regarding all matters with respect to the tax consequences of the granting of
the Options and its exercise by Optionee.
9. NON-EMPLOYMENT. Nothing in this Agreement, shall confer on Optionee, nor
imply in favor of Optionee any right to continue as a contractor to or employee
of the Company or of any parent or subsidiary company of the Company or prevent,
or in any way impair the right of the stockholders or Board to terminate
Optionee's relationship with the Company pursuant to the Employment Agreement.
10. GENERAL PROVISIONS.
(a) AGREEMENT TO BE BOUND BY CONTRACT. This Agreement shall be binding not
only by the parties hereto, but also upon their heirs, executors,
administrators, successors or assigns. The parties hereto agree for themselves
and their heirs, executors, administrators, successors or assigns, to execute
any instruments and to perform any acts which may be necessary or proper to
carry out the purposes of this Agreement.
(b) AMENDMENT OR ALTERATION. This Agreement may be altered or amended, in
whole or in part, at any time, only by a written instrument setting forth such
changes signed by all parties hereto.
(c) WAIVER. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by any party.
(d) NOTICES. Any notices permitted or required hereunder shall be delivered
to the parties personally, by telecopier, or by United States Mail, with postage
prepaid, certified or registered, return receipt requested, addressed to the
respective parties at the following addresses and telecopier numbers:
If to Company: Smart Choice Automotive Group, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx Xxxxxxxxxx, Jr.
Corporate Counsel
Telecopier: (000) 000-0000
If to Grantor: Xxxxxx X. Xxxxxx, Trustee
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
If to Optionee: At the address and telecopier
number for the Optionee on file
with the Company
The date of service of any notice or communication hereunder shall be the
date of the hand delivery or receipt of telecopy, or three (3) days after the
mailing, if mailed by certified mail, return receipt requested. A party whose
address or telecopy number changes shall notify the other party, in accordance
with this Section, within five (5) business days of such change (the "Changed
Party"). Failure of the Changed Party to notify the other party of such a change
shall constitute a waiver of any right to receive notice under this Agreement by
the Changed Party.
(e) VALIDITY. In the event that any provision of this Agreement shall be
held to be invalid, the same shall not affect, in any respect, the validity of
the remainder of this Agreement.
(f) INTEGRATED AGREEMENT. This Agreement and the Employment Agreement and
all agreements executed in accordance with the terms hereof constitutes the
entire understanding and agreement among the parties hereto with respect to the
subject matter hereof, and there are no agreements, understandings,
restrictions, representations or warranties among the parties other than those
set forth herein.
(g) ATTORNEYS' FEES. In the event any litigation including any appeals is
instituted in connection with the breach, enforcement or interpretation of this
Agreement, including, without limitation, any action seeking declaratory relief,
equitable relief, injunctive relief, or damages, the prevailing party shall be
entitled to recover from the non-prevailing party all costs, expenses and
attorneys' fees incurred in connection therewith, including any costs of
collection.
(h) STATE LAW GOVERNING CONTRACTS. This Agreement shall be governed by the
laws of the State of Florida.
(i) NO CONSTRUCTION AGAINST DRAFTING PARTY. Each party to this Agreement
expressly recognizes that it results from a negotiated process in which each
party was given the opportunity to consult with counsel and contributed to the
drafting of this Agreement. Given this fact, no legal or other presumptions
against the party drafting this Agreement concerning its construction,
interpretation or otherwise shall accrue to the benefit of any party to this
Agreement and each party shall expressly waives the right to assert such a
presumption in any proceedings or disputes connected with, arising out of, or
involving this Agreement.
IN WITNESS WHEREOF, the parties have executed this Non-Qualified Stock
Option Agreement under seal as of the date first above written.
THE COMPANY:
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /s/ Xxxx X. Xxxxx
---------------------
Xxxx X. Xxxxx
THE GRANTORS:
XXXXXX-XXXXX CHOICE HOLDINGS
MANAGEMENT TRUST under agreement
dated January 29, 1997
By: /s/ Xxxx X. Xxxxx
---------------------
Xxxx X. Xxxxx, Trustee
By: /S/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXX-XXXXX CHOICE HOLDINGS
MANAGEMENT TRUST under agreement
dated January 29, 1997
By: /s/ Xxxx X. Xxxxx
---------------------
Xxxx X. Xxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx, Trustee
THE OPTIONEE:
/s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
