NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 26th day of August, 1996, by and
between FAC REALTY, INC., a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXXXX, an individual (the "Holder"), pursuant to, and under authority of, the
Company's 1993 Employee Stock Incentive Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company desires to provide the Holder with an option to
purchase One Hundred Forty-Three Thousand Six Hundred Sixty-Five (143,665)
shares of Common Stock, $.01 par value, of the Company ("Shares"); and
WHEREAS, the Holder desires to accept such option;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto hereby agree as follows:
1. Grant of Option. The Company does hereby grant to the Holder, and
the Holder does hereby accept, the right and option (the "Option") to purchase,
at the option of the Holder, 143,665 Shares at the option price of $8.63 per
Share, upon and subject to the other terms and conditions hereof.
Notwithstanding the foregoing, if at any or from time to time the number of
Shares are increased or decreased, or changed into or exchanged for a different
number or kind of shares of stock or other securities of the Company or of
another corporation (whether as a result of a stock split, stock dividend,
combination or exchange of shares, exchange for other securities,
reclassification, reorganization redesignation, merger, consolidation,
recapitalization or otherwise), then (i) there shall automatically be
substituted, for each Share for which the Option has not been exercised, the
number and kind of shares of stock or other securities into which each
outstanding share shall be changed or for which each such share shall be
exchanged, and (ii) the option price per Share shall be increased or decreased
proportionately so that the aggregate exercise price for the Shares subject to
the Option shall remain the same as immediately prior to such event. In addition
to the foregoing, the Company shall be entitled in the event of any such
increase, decrease or exchange of Shares to make adjustments to this Agreement
(including adjustments which may provide for the elimination of fractional
shares) which do not have a material adverse effect upon the Holder, where
necessary to preserve the terms and conditions hereof.
2. Term of the Option. Subject to the other terms and conditions
hereof, the Option shall vest with respect to Twenty-Eight Thousand Seven
Hundred Thirty-Three (28,733) Shares per year on the first through fifth
anniversaries of the Effective Date, and is exercisable, in whole or in part,
only with respect to those Shares for which the Option has become vested. Shares
for which the Option has become exercisable shall be referred to herein as
"Vested Shares", and Shares for which the Option has not become exercisable
shall be referred to herein as "Unvested Shares". The Option shall terminate on
August 26, 2006, and must be exercised, if at all, before
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such date and shall not thereafter be exercisable, notwithstanding anything
herein to the contrary. The "Effective Date" for the purpose of this Paragraph 2
shall be the date first written above.
3. Conditions on Exercise Should there ever be insufficient Shares
under the Plan for the exercise of the Option as to the desired number of
Shares, the Option may not be exercised as to such number of Shares unless and
until stockholders of the Company approve an amendment to the Plan to provide
sufficient shares under the Plan for the Option.
4. Exercise. (i) Subject to the other terms and conditions hereof, and
provided payment is made as provided below, the Option shall be exercisable from
time to time by written notice to the Company (in the form required by the
Company) which shall:
(a) state that the Option is thereby being exercised the
number of Shares with respect to which the Option is being exercised,
each person in whose name any certificates for the Shares should be
registered and such person's address and social security number;
(b) be signed by the person or persons entitled to exercise
the Option and, if the Option is being exercised by anyone other than
the Holder, be accompanied by proof satisfactory to counsel for the
Company of the right of such person or persons to exercise the Option
under all applicable laws and regulations; and
(c) be accompanied by such representations, warranties or
agreements with respect to the investment intent of such person or
persons exercising the Option and the compliance with any applicable
law or regulation or to confirm any factual matters as the Company or
its counsel may reasonably request, in form and substance satisfactory
to counsel for the Company.
(ii) Payment of the Option price may be made, in the
discretion of the person exercising the Option, in one of the following manners,
or in any other manner approved by the Administrator (as "Administrator" is
defined in the Plan), in its sole discretion:
(a) the written notice to the Company described above may be
accompanied by full payment of the option price in cash or by check,
or, with the consent of the Company, in whole or in part with a
surrender of previously acquired Shares of the Company having a Fair
Market Value (as defined below) on the date of exercise equal to that
portion of the purchase price for which payment in cash or check is not
made. The later of the dates on which such notice and payment are
received by the Company shall be the date of exercise of the Option;
and
(b) within five days of the giving of the written notice to
the Company described above, the funds to pay for exercise of the
Option may be delivered to the Company by a broker acting on behalf of
the person exercising the Option either in connection with the sale of
the Shares underlying the Option or in connection with the making of a
margin loan to such person to enable payment of the exercise price of
the Option. The later of the dates on which such notice and payment are
received by the
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Company shall be the date of exercise of the Option. In connection with
any such exercise, the Company will provide a copy of the notice of
exercise of the Option to the aforesaid broker upon receipt by the
Company of such notice and will deliver to such broker, within five
business days of the delivery of such notice to the Company, a
certificate or cer`tificates (as requested by the broker) representing
the number of Shares underlying the Option that have been sold by such
broker for the person exercising the Option.
(iii) For purposes hereof, the "Fair Market Value" of a Share
as of a given date shall be (in order of applicability): (a) the closing price
of a Share on the principal exchange on which the Shares are then trading, if
any, on the day immediately prior to such date, or if Shares were not traded on
the day previous to such date, then on the next preceding trading day during
which a sale occurred; or (b) if Shares are not traded on an exchange but are
quoted on NASDAQ or a successor quotation system, (1) the last sale price (if
Shares are then listed as a National Market Issue under the NASD national Market
System), or (2) if Shares are not then so listed, the mean between the closing
representative bid and asked prices for Shares on the day previous to such date
as reported by NASDAQ or such successor quotation system; or (c) if Shares are
not publicly traded on an exchange and not quoted on NASDAQ or a successor
quotation system, the mean between the closing bid and asked prices for Shares,
on the day previous to such date, as determined in good faith by the
Administrator; and (d) if Shares are not publicly traded, the fair market value
established by the Administrator acting in good faith.
(iv) Upon exercise of the Option and the satisfaction of all
conditions thereto, the Company shall deliver a certificate or certificates for
Shares to the specified person or persons at the specified time upon receipt of
payment for such Shares as set forth above .
5. Termination of Employment. If the Holder's employment with the
Company ends on account of his death or permanent and total disability, the
Option shall automatically become vested with respect to all Shares, and the
Option must be exercised, if at all, within the one-year period ending on the
anniversary of such death or permanent and total disability. In the case of
death, the Option shall be exercised by the Holder's estate or the person
designated by the Holder by will, or as otherwise designated by the laws of
descent and distribution. If the Holder's employment with the Company ends due
to termination of his employment by the Company "without cause" (as defined in
Section 8 of the Plan), the Option may and must be exercised, if at all, with
respect to any or all of the Vested Shares, within one year of the date of such
termination. In all other instances that the Holder ceases to be an employee of
the Company, the Holder shall have no right after his employment ends to
exercise all or any part of this Option with respect to either Vested or
Unvested Shares. For purposes hereof, "permanent and total disability" is
defined in Section 8 of the Plan.
6. Transferability. The Option and the Holder's rights therein are not
transferable by the Holder, except upon the death of the Holder as provided in
Paragraph 5. The Option is exercisable (subject to any other applicable
restrictions on exercise) only by the Holder, except when a guardian or other
legal representative has been duly appointed for the Holder and except in the
event of the Holder's death as provided in Paragraph 5.
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7. Taxes. The Holder hereby agrees to pay to the Company any federal,
state or local taxes of any kind that may be required by law to be withheld and
remitted by the Company with respect to the Option and the exercise thereof. If
the Holder does not make such payment to the Company, the Company, to the extent
required or permitted by law, shall have the right to withhold from any payment
of any kind otherwise due to the Holder from the Company, any federal, state or
local taxes of any hind required by law to be withheld with respect to the
Option or the Shares which are the subject of the Option. The Administrator, in
its sole discretion, may permit the Holder to pay such taxes through the
withholding of Shares otherwise deliverable to the Holder upon exercise of the
Option or the delivery to the Company of Common Shares otherwise acquired by the
Holder. The fair market value of Common Shares withheld by the Company or
tendered to the Company for the satisfaction of any tax withholding obligations
determined to exist under this Paragraph 8 shall be determined on the date such
Common Shares are withheld or tendered.
8. Intent. The Option does not, and is not intended to, qualify as an
"Incentive Stock Option" for purposes of Section 422 (b) of the Internal Revenue
Code of 1986, as amended. The option shall be construed and exercised consistent
with such intention.
9. Securities Law Compliance. Notwithstanding any provision of this
Agreement to the contrary, the Option shall not be exercisable unless, at the
time the Holder attempts to exercise the Option, in the opinion of counsel for
the Company, all applicable securities laws, rules and regulations have been
complied with. The Holder agrees that the Administrator may impose such
restrictions on the Shares as are deemed advisable by the Administrator,
including, without limitation, restrictions relating to listing or trading
requirements. The Holder further agrees that certificates representing the
Shares may bear such legends and statements as the Administrator shall deem
appropriate or advisable to assure, among other things, compliance with
applicable securities laws, rules and regulations.
10. Rights of the Holder. The Holder shall have no dividend, voting or
other rights of a stockholder with respect to the Shares which are subject to
the Option prior to the purchase of such Shares upon exercise of the Option and
the execution and delivery of all other documents and instruments deemed
necessary or desirable by the Company.
11. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware except to the extent otherwise
governed by Federal law. This Option is subject in all respects to the terms and
conditions of the Plan, which are incorporated by reference herein.
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IN WITNESS WHEREOF, the parties have subscribed their names hereto as
of the date first above written.
FAC REALTY, INC., a Delaware
corporation
By: /s/ X. Xxxxxxx Xxxxxx (SEAL)
X. Xxxxxxx Xxxxxx
President and COO
/s/ Xxxxxxx X. Xxxxxxxx (SEAL)
Xxxxxxx X. Xxxxxxxx
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