Exhibit 10.32
STOCK OPTION AGREEMENT'
This STOCK OPTION AGREEMENT (this "Agreement") is made effective as of
March 30, 1998, by and between APCOA/Standard Parking, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxxxxx (together with his heirs and
permitted successors and assigns, "Optionee").
1. GRANT. The Company hereby grants to Optionee an option to purchase
from the Company .316257808 shares of the common stock of the Company (the
"Shares") at the Exercise Price (as defined in paragraph 2 below) during the
Exercise Period (as defined in paragraph 3 below) (the "Option").
Notwithstanding the foregoing, the number of Shares subject to the Option may be
adjusted as provided in paragraph 9 hereof. The Option is a non-qualified stock
option, not an incentive stock option, as defined in Section 422 of the Internal
Revenue Code of 1986, as amended.
2. EXERCISE PRICE. The Exercise Price per share shall be $283,944.00;
3. EXERCISE PERIOD. Optionee may exercise the Option, in whole or in
part, at any time and from time to time after March 30,1998 until the 10th
anniversary of the date hereof (the "Exercise Period"). Said 10-year period
shall not be subject to reduction for any reason.
4. VESTING. The Option shall fully vest and shall be immediately
exercisable upon execution of this Agreement.
5. EXERCISE OF OPTION. Optionee may exercise the Option by delivery to the
Company of a written notice in the form attached hereto as Exhibit A (the
"Exercise Notice"). The Option shall be deemed to have been exercised when (a)
the Company has received a completed Exercise Notice, and (b) the Company has
received payment in the amount of the applicable Exercise Price. No Shares shall
be issued pursuant to the exercise of the Option unless such issuance and
exercise shall comply with all applicable laws. Assuming such compliance, for
income tax purposes the Shares shall be considered transferred to Optionee on
the date on which the Option is exercised with respect to such Shares.
(a) METHOD OF PAYMENT. Optionee may pay the applicable Exercise Price by
any of the following means:
(i) cash or check; or
(ii) cashless exercise pursuant to paragraph 7 below.
(b) EXPENSES OF ISSUANCE. The Company shall issue the Shares upon
exercise of this Option without charge to Optionee for any issuance tax or other
cost incurred by the Company in connection with such exercise and the related
issuance of the Shares. Each of the Shares shall, upon payment of the Exercise
Price therefore, be fully paid and nonassessable and free from all liens and
charges with respect to the issuance thereof.
(c) WITHHOLDING TAXES. In no event shall Shares be delivered to the
Optionee until the Optionee has paid to the Company in cash, or made
arrangements reasonably satisfactory to the Board regarding the payment of the
amount of any taxes of any kind required by law to be withheld with respect to
the Shares subject to the Option.
(d) RESERVE. The Company shall at all times reserve and keep available
out of its authorized but unissued shares of common stock, for the purpose of
issuance upon the exercise of this Option, such number of shares of common stock
as are issuable upon the exercise in full of this Option. The Company shall take
all such actions as may be necessary to assure that all such shares of common
stock may be so issued without violation of any applicable law or governmental
regulation or any requirements of any securities exchange upon which the
Company's shares of common stock may be listed.
6. ADMINISTRATION. Any liability of the Company with respect to the
Option shall be based solely upon contractual obligations created by this
Agreement.
7. NET EXERCISE OPTION. At Optionee's election, Optionee shall have the
right to make a net-exercise or cashless exchange. In such event, Optionee shall
deliver the Exercise Notice to the Company and shall receive in exchange
therefore the number of shares of the Company's common stock equal to the
aggregate number of Shares being purchased upon exercise (I.E., the number of
shares as to which the Option is being exercised) less the number of shares of
the Company's common stock having a Market Value equal to the aggregate Exercise
Price of the Shares as to which the Option is being exercised. Optionee shall
also have the right to surrender to the Company securities of the Company having
a Market Value equal to the Exercise Price of the Shares being purchased upon
such exercise. The "Market Value" of a share of the Company's common stock shall
be determined pursuant to the formula set forth in Section 6.2(b) of the
Stockholders Agreement by and among Xxxxxx Partners, L.P., SP Associates,
Xxxxxxx Industries, Inc. and AP Holdings, Inc., dated March 30, 1998, as same
has been subsequently amended (the "Stockholders Agreement").
8. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Optionee represents and
warrants to the Company as follows:
(a) RELIANCE UPON INITIAL HOLDER'S REPRESENTATIONS. Optionee
understands that the Option is not, and any Shares acquired upon exercise of the
Option (such Shares, together with the Option, being the "Securities") may not
be, cost incurred by the Company in connection with such exercise and the
related issuance of the Shares. Each of the Shares shall, upon payment of the
Exercise Price therefore, be fully paid and nonassessable and free from all
liens and charges with respect to the issuance thereof.
(b) ACCREDITED INVESTOR: INVESTMENT EXPERIENCE. Optionee is an
accredited investor within the definition of Regulation D of the Securities Act.
Optionee is experienced in evaluating and investing in private placement
transactions of securities of companies similar to the Company and acknowledges
that Optionee is able to fend for himself, can bear the economic risk of
Optionee's investment, and has such knowledge and experience in financial and
business matters that Optionee is capable of evaluating the merits and risks of
the investment in the Option and Securities and can afford a complete loss of
his investment.
(c) NO PUBLIC MARKET. Optionee understands that no public market now
exists for any of the Securities issued by the Company and there is no assurance
that a public market will ever exist for the Securities.
(d) RESTRICTED SECURITIES. Optionee understands that the Securities
may not be sold, transferred, or otherwise disposed of without registration
under the Securities Act or an exemption there from, and that in the absence of
an effective registration statement covering the Securities or an available
exemption from registration under the Securities Act, the Securities must be
held indefinitely. In particular, Optionee is aware that the Securities may not
be sold pursuant to Rule 144 promulgated under the Securities Act unless all of
the conditions of that Rule are met. Among the conditions for use of Rule 144
may be the availability of current information to the public about the Company.
Such information is not now available and the Company has no present plans to
make such information available.
(e) TAX CONSULTATION. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
9. ANTI-DILUTION. If at any time after the date hereof the Company
shall issue shares of common stock, the Company hereby agrees to increase
the number of Shares subject to the Option by a number of shares of the
Company's common stock equal to the product of (i) the total number of
additional shares of common stock issued multiplied by (ii) a fraction, the
numerator of which is the Shares subject to the Option immediately prior to the
issuance of new shares of the Company's common stock and the denominator of
which is the total number of shares of the Company's common stock outstanding
immediately prior to the issuance of new shares of the Company's common stock.
10. RESTRICTIONS ON TRANSFER. This Option is not transferrable without
the prior written consent of the Company, except that Optionee may transfer the
Option to (a) Optionee's affiliates (including, without limitation, Xxxxxx
Partners, L.P. and Waverly Partners, L.P. or any success or entity to either of
them), spouse and/or direct descendants, and/or the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of Optionee's
estate (or the estate of his spouse or direct descendants) upon death (all of
the foregoing? collectively, "Associates") or (b) any trust, the beneficiaries
of which, or any corporation, limited liability company or partnership, the
shareholders, members or `general or limited partners of which, consist solely
of Optionee or his Associates (and only for so long as there are no other
shareholders, members or partners) (each, a "Permitted Transferee"); provided,
however, that (I) any such Permitted Transferee shall have agreed in writing to
be bound by the terms of this Agreement with respect to the Shares and (ii) any
transfer to a Permitted Transferee shall not be in violation of applicable
federal or state securities laws. For purposes of this Section 10, an
"affiliate" of a subject person or entity shall be a person or entity directly
or indirectly controlling, controlled by or under common control with the
subject person or entity.
11. INDEMNIFICATION. The Company shall hold Optionee harmless from, and
`indemnify, reimburse and defend Optionee from and against, any and all (i)
claims, losses, liabilities, obligations (including, without limitation, taxes,
assessments, interest and penalties thereon), damages, deficiencies and expenses
resulting from the Company's breach of this Agreement, or (ii) tax, interest or
penalties resulting from the grant (but not the exercise) of the Option.
Optionee shall hold the Company harmless from, and indemnify and defend the
Company against, any and all claims, losses, liabilities, obligations
(including, without limitation, taxes, and assessments, interest and penalties
thereon), damages, deficiencies and expenses resulting from Optionee's breach of
this Agreement, including without limitation, Optionee's breach of the
representations and warranties made herein.
12. COORDINATION WITH STOCKHOLDERS AGREEMENT. Except as otherwise
expressly set forth in this Agreement, Optionee, the Company and the other
parties (the "Other Parties") named on the Joinder attached hereto
as Exhibit B (who are all parties to the Stockholders Agreement) hereby agree
that, upon exercise of the Option and transfer to Optionee of the Shares,
Optionee shall be bound by, and shall have the benefit of. the terms and
conditions of the Stockholders Agreement as a Stockholder, as therein defined.
Without limiting the generality of the foregoing, Optionee, the Company and the
Other Parties hereby acknowledge and agree that:
(a) the Option and the Shares acquirable pursuant to the Option are
subject to, and are included in, any determinations of "Preemptive Rights" in
favor of Optionee pursuant to Section 4.2 of the Stockholders Agreement;
(b) the Option and the Shares acquirable pursuant to the Option shall be
subject to, and included in, the "Tag-Along Rights" and the "Drag-Along
Rights"(and other terms) of Article V of the Stockholders Agreement (it being
understood that, immediately prior to the closing of a transaction involving
subject Tag-Along or Drag-Along Rights, as part of the inclusion of Shares
subject to a previously unexercised Option, the remaining Option (or applicable
portion thereof, as the case may be) shall be exercised and deemed exercised by
Optionee in a manner designated by Optionee pursuant to Sections 5 and 7 of this
Agreement);
(c) the Option and the Shares ~acquirable pursuant to the Option shall
be subject to, and included in, the "Call Right" and the "Put Right" (and other
terms) of Article VI of the Stockholders Agreement (it being understood that,
immediately prior to the closing of a transaction involving a subject Put Right
or Call Right, as part of the inclusion of Shares subject to a previously
unexercised Option, the remaining Option (or applicable portion thereof, as the
case may be) shall be exercised and deemed exercised by Optionee in a manner
designated by Optionee pursuant to Sections 5 and 7 of this Agreement); and
(d) the Option and the Shares acquirable pursuant to the Option shall be
deemed "Registrable Shares" for purposes of Article VII of the Stockholders
Agreement and Optionee shall be given reasonable opportunity to exercise the
Option (in any manner permitted by Sections 5 and 7 of this Agreement) so as to
include Shares subject to the Option in any registration process which is the
subject of said Article VII.
13. NO VOTING: LIMITATION ON LIABILITY: NO RIGHT TO CONTINUED
EMPLOYMENT. This Option shall not entitle Optionee, prior to exercise, to any
voting rights or other rights as a Stockholder of the Company (although Optionee
may have such rights with respect to other shares of stock, or other interests,
in the Company owned by him). No provision hereof, in the
absence of affirmative action by Optionee to purchase Shares, and no enumeration
herein of the rights or privileges of Optionee, shall give rise to any liability
of Optionee for the Exercise Price of the Shares. Neither the Option nor any
terms contained in this Agreement shall confer upon the Optionee any express or
implied right to be retained in the service of the Company or any subsidiary of
the Company for any period or at all, nor restrict in any way any right of the
Company or any subsidiary of the Company concerning Optionee's employment.
14. COMPLIANCE WITH LAWS AND REGULATIONS. THE Option and the obligation
of the Company to sell and deliver Shares hereunder shall be subject in all
respects to (I) all applicable Federal and state laws, rules and regulations and
(ii) any applicable listing, registration, qualification, approvals or other
requirements imposed by any securities exchange or government or regulatory
agency or body. Moreover, notwithstanding any other provision hereof, the Option
may not be exercised if its exercise, or the receipt of Shares pursuant thereto,
would be contrary to applicable law. The Company shall use its reasonable, good
faith efforts to cause timely compliance with all of the foregoing laws,
requirements, etc. to the extent such compliance is within its reasonable
control. Further, any delay or postponement of any right to exercise the Option
shall give rise to an extension of the Exercise Period equal to the period of
the delay or postponement, unless the delay is due to the fault of Optionee.
15. NOTICES. Any notice or other communication required or permitted
hereunder to the Company may be delivered in person to the Company's Executive
Vice President and General Counsel or sent to the Company, attention: Xxxxxx
Xxxxx, by facsimile at 312/640-6162, or ~sent by certified or registered mail or
overnight courier, prepaid, addressed to the Company at APCOA/Standard Parking,
Inc., 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and, if to the
Optionee, shall be addressed to him at the address set forth below his signature
hereon, subject to the right of either party to designate at any time hereafter
in writing some other address.
16. DESCRIPTIVE HEADINGS: GOVERNING LAW. The descriptive headings of the
several Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. The construction, validity and
interpretation of this Agreement shall be governed by the internal law, and not
the conflicts law, of the State of Delaware without presumption or construction
against the party preparing it.
17. SUCCESSORS AND ASSIGNS. The Company may assign any and all of its
rights under this Agreement to its successors, and this Agreement shall inure to
the benefit of, and be binding on, the successors of the Company. Subject to the
restrictions on transfer herein set forth, this Agreement shall be binding upon
Optionee and his heirs, executors,
administrators, successors and assigns.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes in its
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to
Optionee's interest except by means of a writing signed by the Company and
Optionee.
19. SEVERABILITY. If any of the provisions of this Agreement should be
deemed unenforceable, the remaining provisions shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed and attested by its duly authorized officers under its corporate seal
effective as of the date first written above.
APCOA/STANDARD PARKING, INC.
By
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Its
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XXXXX X. XXXXXXXXX
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Address: 0000 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
EXHIBIT A
EXERCISE NOTICE
To: APCOA/Standard Parking, Inc. Dated:
The undersigned, pursuant to the provisions set forth in the Stock
Option Agreement dated effective as of March 30,1998 (the "Agreement"), hereby
exercises his right to purchase _________________ of the Shares at the Exercise
Price of __________________ as provided in the Agreement, and makes payment
herewith in full therefore, either in the form of cash or in a cashless (net
exercise) exchange at the price per share provided in the Agreement.
Signature
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EXHIBIT B
CONSENT AND JOINDER
TO
STOCK OPTION AGREEMENT
THIS CONSENT AND JOINDER (this "AGREEMENT") to that certain Stock Option
Agreement made effective as of March 30, 1998, by and between APCOA/Standard
Parking, Inc., a Delaware corporation (the "Company") and Xxxxx X. Xxxxxxxxx
("OPTIONEE") (the "STOCK OPTION AGREEMENT"), is made effective as of March 0,
1998, by and among the Company, Optionee, Xxxxxx Partners, L.P., a Delaware
limited partnership ("Xxxxxx"), SP Associates, an Illinois general partnership
("SP Associates"), Steamboat Holdings, Inc., a Delaware corporation
("Steamboat"), AP Holdings, Inc., a Delaware corporation (AP Holdings"), and
Waverly Partners, L.P., an Illinois limited partnership ("Waverly" and, together
with Xxxxxx, XX Associates, Xxxxxxx and Waverly, the "EXISTING SHAREHOLDERS"),
who are parties to that certain Stockholders Agreement dated March 30,1998 by
and among the Company and the Existing Shareholders (the "STOCKHOLDERS
AGREEMENT"). Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Stockholders Agreement, as defined in the Stock
Option Agreement.
WHEREAS, the Company has entered into the Stock Option Agreement with
Optionee pursuant to which the Company granted Optionee an option to purchase
(the "Option") certain shares of the Company's common stock (the "Shares");
WHEREAS, pursuant to the Stock Option Agreement, Optionee holds certain
rights with respect to the Shares prior to exercise of the Option (the
"Rights"); and
WHEREAS, the parties desire that the Option and the Shares shall be
subject to the Stockholders Agreement as provided in the Stock Option Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. CONSENT TO GRANT OF RIGHTS. The Existing Shareholders hereby consent
to the execution of the Stock Option Agreement and the grant of
Rights thereunder, and join as parties and agree to be bound by the terms and
provisions of paragraph 11 of the Stock Option Agreement.
2. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of and be enforceable by the Company, the Existing Shareholders and
Optionee, and their respective successors and assigns permitted under the
Stockholders Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
APCOA/STANDARD PARKING, INC.
By:
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Its:
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Date:
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SP ASSOCIATES
By: SP Managers, L.P.
Its: Managing Partner
By: Standard Managers, Inc.
Its: General Partner
By:
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Its:
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Date:
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STEAMBOAT HOLDINGS, INC.
By:
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Its:
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Date:
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AP HOLDINGS, INC.
By:
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Its:
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Date:
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XXXXXX PARTNERS, L.P.
By:
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Its:
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Date:
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WAVERLY PARTNERS, L.P.
By:
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Its:
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Date:
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XXXXX X. XXXXXXXXX
By:
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Its:
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Date:
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