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EXHIBIT 10.9
AMERICAN HOMESTAR CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
1. Grant of Option. Pursuant to a resolution of the Compensation
Committee of the Board of Directors of American Homestar Corporation, a Texas
corporation (the "Company"), dated November 15, 1996 (the "Date of Grant"), the
Company hereby grants Xxxxx X. Xxxxxx ("Optionee") a Non-Qualified Stock Option
(the "Option") to purchase from the Company a total of 75,000 shares of the
Company's common stock, par value $0.05 per share (the "Common Stock") at an
exercise price of $17.00 per share, in the amounts, during the periods, and
upon the terms and conditions set forth herein; provided, however, that
notwithstanding anything herein to the contrary, the granting of the Option is
subject to the approval of the shareholders of the Company, and this Option may
not be exercised, in whole or in part, until and unless such approval has been
obtained.
2. Term of Exercise. The Option shall terminate on November 15,
2006. Subject to the previous sentence, the Option may be exercised after
November 15, 2005; provided, however, that this Option may be exercised earlier
according to the following schedule:
25,000 shares: if the Company's Market Cap
equals or exceeds $300
million at any time on or
prior to November 15, 2000
25,000 additional shares: if the Company's Market Cap
equals or exceeds $400
million at any time on or
prior to November 15, 2000
25,000 additional shares: if the Company's Market Cap
equals or exceeds $500
million at any time on or
prior to November 15, 2000
As used herein, the term "Company's Market Cap" shall mean the market
capitalization of the Company which shall be determined, on any given day, by
multiplying the last closing price of the Common Stock on such day by the
number of issued and outstanding shares of Common Stock on such day.
3. Restrictions on Exercise. The Option:
(a) may be exercised only with respect to full shares of
Common Stock and no fractional shares of Common Stock shall be issued
upon exercise of the Option; and
(b) may be exercised, in whole or in part, but no
certificates representing shares of Common Stock subject to the Option
shall be delivered if any requisite registration with, clearance by,
or consent, approval or authorization of, any governmental authority
of any kind having jurisdiction over the exercise of the Option, or
issuance of securities upon such exercise, shall have not been taken
or secured, or an opinion of counsel for the Company has not been
received stating that no such consent, approval or authorization is
necessary.
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4. Manner of Exercise. The Option may be exercised by written
notice to the Company of the number of shares of Common Stock being purchased
and the exercise price to be paid accompanied by the following:
(a) full payment of the exercise price in United States
dollars, or in shares of Common Stock then owned by the Optionee, or
in any other form of valid consideration, or a combination of any of
the foregoing as required or permitted by the Board of Directors in
its discretion; and
(b) an undertaking to furnish or execute such documents
as the Company in its discretion shall deem necessary (i) to evidence
such exercise, in whole or in part, of the Option, (ii) to determine
whether registration is then required under the Securities Act of
1933, as then in effect, and (iii) to comply with or satisfy the
requirements of the Securities Act of 1933 (the "Securities Act"), or
any other federal, state or local law, as then in effect.
Upon due exercise of the Option, the Company shall issue certificates
representing shares of Common Stock registered in the name of the person
exercising the Option.
5. Withholding of Taxes. The Company shall be entitled to
withhold from any payments otherwise due Optionee such amounts as may be
necessary to satisfy any federal income tax withholding requirement with
respect to the exercise of the Option, the transfer of shares of Common Stock,
or the disposition of such shares, and may, if necessary, collect from Optionee
additional amounts necessary to satisfy the withholding requirement.
6. Non-Transferability of Option. The Option is not assignable
or transferable by Optionee otherwise than by will or the laws of descent and
distribution and during the lifetime of Optionee may only be exercised by
Optionee.
7. Rights as Shareholder. Neither the Optionee nor any of
Optionee's beneficiaries shall be deemed to have any rights as a shareholder of
the Company with respect to any shares covered by the Option until the issuance
of a certificate to the Optionee for such shares. Except as provided in Section
9 below, no adjustment shall be made for dividends or other rights for which
the record date is prior to the issuance of such certificate or certificates.
8. Capital Adjustments. The aggregate number of shares of Common
Stock covered by the Option and the exercise price per share of Common Stock
covered by the Option shall be proportionately adjusted for any increase or
decrease in the number of shares of Common Stock through the declaration of a
stock dividend or through any recapitalization resulting in a stock split-up,
combination or exchange of shares of Common Stock.
9. Rights in Event of Death of Optionee. If Optionee dies prior
to termination of Optionee's rights to exercise the Option in accordance with
the provisions of this Agreement without having exercised the Option as to all
shares covered hereby, the Option may be exercised by Optionee's estate or a
person who acquired the right to exercise the Option by request or inheritance
or by reason of the death of Optionee; provided, however, that, the period
during
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which the Option may be so exercised shall not continue beyond the expiration
of the Option or one year from the date of Optionee's death, whichever date
first occurs.
10. Shares Purchased for Investment. Optionee agrees that any
shares of Common Stock acquired on exercise of this Option shall be acquired
solely for Optionee's own account and not as a nominee or agent for any other
person, for investment, and not with a view to, or for offer or resale in
connection with, any distribution thereof within the meaning of the Securities
Act or other applicable securities laws. Optionee understands that any shares
of Common Stock acquired on exercise of this Option have not been registered
under the Securities Act or under any applicable blue sky or other state
securities law or regulation (hereinafter collectively referred to as "blue sky
laws") and that Optionee cannot offer for sale, sell, pledge, transfer or
otherwise dispose of such shares of Common Stock unless such shares of Common
Stock have been registered under the Securities Act and under any applicable
blue sky laws, or unless an exemption from such registration is available with
respect to any such proposed offer, sale, pledge, transfer or other
disposition. Optionee agrees that a restrictive legend addressing the foregoing
restrictions on transfer may be placed on certificates representing any shares
of Common Stock acquired on exercise of this Option and that transfer of such
shares of Common Stock may be refused by the Company or its transfer agent, if
any, if in the opinion of counsel to the Company any proposed sale or other
disposition thereof by Optionee would not be in compliance with the Securities
Act or any other applicable federal securities laws or blue sky laws.
11. Notices. Each notice relating to this Agreement shall be in
writing and delivered in person or by certified mail to the proper address.
Each notice shall be deemed to have been given on the date it is received. Each
notice to the Company shall be addressed to it at 0000 Xxxxx Xxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx Xxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxxx. Each notice
to Optionee or other person or persons then entitled to exercise the Option
shall be addressed to Optionee at the address specified below or such other
person or persons at Optionee's address specified below. Anyone to whom a
notice may be given under this Agreement may designate a new address by notice
to that effect.
12. No Obligation to Exercise Option. This Agreement does not
impose any obligation upon Optionee to exercise the Option.
13. Law Governing. THIS AGREEMENT IS INTENDED TO BE PERFORMED IN
THE STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE.
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EXECUTED as of the date first set forth above.
AMERICAN HOMESTAR CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Vice President - Finance
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OPTIONEE:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Address:
