EXHIBIT 10.1
STOCK OPTION AGREEMENT
This is a Stock Option Agreement ("Agreement"), executed on the ___ day
of December, 1997, to be effective as of the ___ day of September, 1995 (the
"Grant Date"), by and between R&A PARTNERSHIP, LTD., a Texas limited
partnership, through Xxxxx Xxxxxx as designee of the General Partner, RPM
Investments, Inc. (the "Grantor"), and XXXXX NORTH (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Grantor desires to grant the Optionee an option to
purchase three hundred fifty thousand (350,000) shares of Common Stock, par
value $.01 per share ("Common Stock"), of Vacation Break U.S.A., Inc., a Florida
corporation (the "Company"), which shares are currently owned by the Grantor,
upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, the Grantor and the Optionee hereby agree as follows:
1. GRANT OF OPTION. Subject to the provisions of this Agreement, the
Grantor hereby grants to the Optionee an option (the "Option") to purchase from
the Grantor three hundred fifty thousand (350,000) shares of Common Stock (after
the exercise of the Option and upon the proposed sale of the shares, the "Option
Shares"), at the price set forth in Section 2 hereof (the "Option Price").
2. OPTION PRICE AND EXERCISE OF OPTION.
(a) Except as set forth below, the Optionee may exercise the
Option and acquire and sell the Option Shares commencing October 15, 1996 and
thereafter any time and from time to time until October 1, 1999, for the Option
Price of $5.00 per share.
(b) The Option may be exercised in whole or in part by the
Optionee in accordance with the terms and conditions set forth in that certain
Option Exercise and Escrow Agreement, attached hereto as Annex A.
(c) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
3. SHARE CERTIFICATE. Upon each exercise of the right to purchase
Option Shares pursuant to this Option, legends in substantially the form set
forth below shall be placed upon each stock certificate representing the Option
Shares:
"The shares of stock represented by this certificate have been
acquired directly from an affiliate of the issuer without being
registered under the Securities Act of 1933, as amended ("Act"),
or the securities laws of any state or other jurisdiction,
including the
Florida Securities Act, and are restricted securities as that
term is defined under Rule 144 promulgated under the Act. These
shares may not be sold, transferred, pledged, hypothecated or
otherwise disposed of in any manner (a "Transfer") unless they
are registered under the Act and the securities laws of all
applicable states and other jurisdictions or unless the request
for Transfer is accompanied by a favorable opinion of counsel
satisfactory to the issuer, stating that such Transfer will not
result in a violation of such laws."
4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at any
time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its shareholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Company shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor. Optionee shall be
entitled to participate in any subscription or other rights offering made to
holders of Common Stock to the same extent as though Optionee has purchased the
full number of shares as to which this Option remains unexercised immediately
prior to the record date for such subscription or other rights offering.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In
case of any reorganization of the Company or in case the Company shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable and upon the
exercise of this Option prior to such consummation, the securities or property
to which the Optionee would have been entitled upon such consummation if the
Optionee had exercised this Option immediately prior thereto, in each such case,
the terms of this Option shall be applicable to the securities or property
receivable upon the exercise of this Option after such consummation.
(c) NOTICE OF CERTAIN EVENTS. If at any time:
(i) the Company shall declare a dividend or other
distribution of Common Stock payable otherwise than in cash at the
same rate as the immediately preceding regular dividend or in Common
Stock; or
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(ii) the company shall authorize the granting to the holders
of the Common Stock of rights to subscribe for or purchase any shares
of capital stock of any class or of any other rights; or
(iii) there shall be any plan or agreement of
reorganization, or reclassification of the capital stock, of the
Company, or consolidation or merger of the Company with, or sale of
all or substantially all of its assets to, another corporation, or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company then the Grantor shall use
best efforts to give to the Optionee at the address of Optionee a copy
of any written notice received from the Company regarding the
foregoing.
(d) Except as otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
direct sale or upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to the number of or exercise price of Option
Shares then subject to this Option.
(e) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right or power of
the Grantor to approve or the Company to make, authorize or consummate (i i) any
or all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii ii) any merger or consolidation
of the Company; (iii iii) any issuance by the Company of debt securities, or
preferred or preference stock that would rank above the Option Shares subject to
outstanding Options; (iv iv) the dissolution or liquidation of the Company; (v
v) any sale, transfer or assignment of all or any part of the assets or business
of the Company; or (vi vi) any other corporate act or proceeding, whether of a
similar character or otherwise.
5. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder in respect to the Option Shares as to which the Option shall not
have been exercised and payment made as herein provided.
6. ISSUANCE OF SHARES. As a condition of any sale or issuance of Option
Shares upon exercise of this Option, the Grantor may require such agreements or
undertakings, if any, as the Grantor may deem necessary or advisable to assure
compliance with any such applicable securities or other law or regulation
including, but not limited to, the following:
(i) a representation and warranty by the Optionee to the
Grantor and the Company, at the time this Option is exercised, that
she is acquiring the Option Shares to be issued to her for investment
and not with a view to, or for sale in connection with, the
distribution of any such Option Shares; and
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(ii) a representation, warranty and/or agreement to be bound
by any legends that are, in the opinion of the Grantor or the Company,
necessary or appropriate to comply with the provisions of any
securities law deemed by the Grantor or the Company to be applicable
to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
7. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein, all
notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Company, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or in
part by the Optionee; however, as provided in Section 7(i) herein, upon the
death of Optionee, the rights of Optionee pursuant to this Agreement will be
transferred by operation of law for the benefit of heirs, successors, estate and
personal representatives of the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes the
entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of such options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole or
in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
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(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as set forth above.
R&A PARTNERSHIP, LTD., a Texas
limited partnership, the Grantor
BY: Xxxxx Xxxxxx, as designee of RPM
Investments, Inc., the General Partner
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: as Designee
/s/ XXXXX NORTH
--------------------------------
XXXXX NORTH, the Optionee
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