EXHIBIT 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxxxx X. Xxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the
aggregate purchase
-2-
price of the shares of Stock as to
which such exercise relates and to
sell the shares of Stock to be
issued upon exercise of the option
and deliver the cash proceeds, less
commissions and brokerage fees to
Optionee or to deliver the remaining
shares of Stock to the option
holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee
while a non-employee director of the Company or within three months after
Optionee ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
Xxxxxx X. Xxxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
-9-
EXHIBIT 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxxxx Xxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the
aggregate purchase
-2-
price of the shares of Stock as to
which such exercise relates and to
sell the shares of Stock to be
issued upon exercise of the option
and deliver the cash proceeds, less
commissions and brokerage fees to
Optionee or to deliver the remaining
shares of Stock to the option
holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee
while a non-employee director of the Company or within three months after
Optionee ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
Xxxxxx Xxxxxx
E. Z. Communications, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
Xxxxxx Xxxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
-9-
EXHIBIT 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxxxxx Xxxxxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee,
subject to the terms and conditions herein set forth, the right and option to
purchase from the Company all or any part
of an aggregate of shares of common stock ($.01 par value) of the Company (the
"Stock") at the purchase price of $10.00 per share, such option to be exercised
as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the
option evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with
-2-
irrevocable instructions to a broker
to deliver promptly to the Company
the amount of sale or loan proceeds
necessary to pay the aggregate
purchase price of the shares of
Stock as to which such exercise
relates and to sell the shares of
Stock to be issued upon exercise of
the option and deliver the cash
proceeds, less commissions and
brokerage fees to Optionee or to
deliver the remaining shares of
Stock to the option holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee
while a non-employee director of the Company or within three months after
Optionee ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within
-3-
three months of the date he ceases to be a non-employee director, but in no
event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death, permanent disability or retirement as
aforesaid, all right to exercise this option shall terminate at the date
Optionee ceases to be a non-employee director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may
-4-
not be exercised if its exercise, or the receipt of shares of Stock pursuant
thereto, would be contrary to applicable law.
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
-5-
If to Optionee, delivered or marked to:
Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx Bank
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
-6-
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxxxxx Xxxxxxxxx
---------------------
Xxxxxxx Xxxxxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
Xxxxxxx Xxxxxxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
-9-
EXHIBIT 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxxxx Xxxxxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on April 16, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 7,000 shares of WE
JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
4/16/97 2,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the
aggregate purchase
-2-
price of the shares of Stock as to
which such exercise relates and to
sell the shares of Stock to be
issued upon exercise of the option
and deliver the cash proceeds, less
commissions and brokerage fees to
Optionee or to deliver the remaining
shares of Stock to the option
holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee
while a non-employee director of the Company or within three months after
Optionee ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
Xxxxxx Xxxxxxxxx
Bannourah Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxxxx Xxxxxxxxx
--------------------
Xxxxxx Xxxxxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
Xxxxxx Xxxxxxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
-9-
EXHIBIT 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxx X. Xxxxxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned by
Optionee that, together with any cash
tendered therewith, have an aggregate
fair market value as of the date the
notice set forth in paragraph 7 is
received by the Company) equal to the
aggregate purchase price of the shares
of Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the aggregate
purchase
-2-
price of the shares of Stock as to which
such exercise relates and to sell the shares
of Stock to be issued upon exercise of the
option and deliver the cash proceeds, less
commissions and brokerage fees to Optionee
or to deliver the remaining shares of Stock
to the option holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee
while a non-employee director of the Company or within three months after
Optionee ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
Xxxx X. Xxxxxxxxx
Xxxxxxxxx Properties, Ltd.
000 Xxxxx Xxxxx Xxxx #000
Xxxxxxxxx, Xxxxxxxx 00000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxx X. Xxxxxxxxx
-------------------------
Xxxx X. Xxxxxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
______________________________
Xxxx X. Xxxxxxxxx
Date:_________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
-9-
EXHIBIT 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and J. Xxxxxx Xxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the
aggregate purchase
-2-
price of the shares of Stock as to
which such exercise relates and to
sell the shares of Stock to be
issued upon exercise of the option
and deliver the cash proceeds, less
commissions and brokerage fees to
Optionee or to deliver the remaining
shares of Stock to the option
holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee while
a non-employee director of the Company or within three months after Optionee
ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
J. Xxxxxx Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ J. Xxxxxx Xxxxxx
--------------------
J. Xxxxxx Xxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
J. Xxxxxx Xxxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
-9-
Exhibit 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxxxx X. Xxxxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the
aggregate purchase
-2-
price of the shares of Stock as to
which such exercise relates and to
sell the shares of Stock to be
issued upon exercise of the option
and deliver the cash proceeds, less
commissions and brokerage fees to
Optionee or to deliver the remaining
shares of Stock to the option
holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee while
a non-employee director of the Company or within three months after Optionee
ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
Xxxxxx X. Xxxxxxx
Burns, Doane, Xxxxxxx & Xxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
Xxxxxx X. Xxxxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
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--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
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================================================================================================================================
-9-
Exhibit 4
---------
PRECISION AUTO CARE, INC.
OPTION AGREEMENT
This Agreement dated the 25th day of February, 1998, between Precision
Auto Care, Inc., a Virginia corporation (the "Company") and Xxxxxxx X. Xxxxx, a
resident of the State of (the "Optionee").
WHEREAS, Optionee is a non-employee director serving on the
Board of Directors of the Company;
WHEREAS, attracting and retaining qualified individuals to serve as
non-employee directors is vital to the continued success of the Company, and to
that end and to bind the interests of Optionee to the interests of the Company,
this Agreement offers Optionee an attractive opportunity to acquire a
proprietary interest in the Company;
WHEREAS, on February 19, 1997, the Board of Directors of WE JAC
Corporation ("WE JAC") granted Optionee the right to purchase 10,000 shares of
WE JAC;
WHEREAS, pursuant to Section 22.1 of Article XXII of the Plan of
Reorganization and Agreement for Share Exchange Offers by and among the Company,
WE JAC, Lube Ventures, Inc., Rocky Mountain Ventures, Inc., Prema Properties,
Ltd., Miracle Industries, Inc., Miracle Partners, Inc. Rocky Mountain Ventures
II, Inc., Xxxxxxx Car Wash, Ltd., and The Xxxx Xxxxx Group, Inc., dated as of
August 27, 1997 (the "Share Exchange Agreement") , the Company succeeded to and
assumed all obligations and liabilities of WE JAC to issue capital stock
pursuant to outstanding options and warrants to purchase WE JAC common stock;
WHEREAS, the Company will fulfill its assumed obligation under the
grant of WE JAC stock options to Optionee by issuing shares of common stock of
Precision Auto Care, Inc. on a one-for-one basis; and
WHEREAS, this Agreement memorializes the Company's assumption of WE
JAC's obligation to issue capital stock pursuant to outstanding options held by
Optionee to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants, agreements, representations and warranties of the parties contained
herein, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions herein set forth, the right and option to purchase
from the Company all or any part of an aggregate of shares of common stock ($.01
par value) of the Company (the "Stock") at the purchase price of $10.00 per
share, such option to be exercised as hereinafter provided.
2. Terms and Conditions. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire ten years after
the date hereof.
(b) Exercise of Option. Subject to the other terms of this
Agreement regarding the exercisability of this option, this option may be
exercised in accordance with the following:
This Option Shall Be
Exercisable With Respect to
the Following Cumulative
On or After this Date Number of Shares
2/19/97 5,000
11/6/97 5,000
Any exercise shall be accompanied by a written notice to the Company specifying
the number of shares as to which the option is being exercised. Notation of any
partial exercise shall be made by the Company on Schedule 1 hereto.
(c) Payment of Purchase Price Upon Exercise. Payment or
provision for payment shall be made as follows:
(i) Optionee shall deliver to the
Company at the address set forth in
paragraph 7 United States currency
in an amount equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(ii) Optionee shall tender to the Company
shares of common stock already owned
by Optionee that, together with any
cash tendered therewith, have an
aggregate fair market value as of
the date the notice set forth in
paragraph 7 is received by the
Company) equal to the aggregate
purchase price of the shares of
Stock as to which such exercise
relates; or
(iii) Optionee shall deliver to the
Company an exercise notice together
with irrevocable instructions to a
broker to deliver promptly to the
Company the amount of sale or loan
proceeds necessary to pay the
aggregate purchase
-2-
price of the shares of Stock as to
which such exercise relates and to
sell the shares of Stock to be
issued upon exercise of the option
and deliver the cash proceeds, less
commissions and brokerage fees to
Optionee or to deliver the remaining
shares of Stock to the option
holder.
Notwithstanding the foregoing provisions, the Company may, in
processing any purported exercise of all or any portion of the option, refuse to
recognize the method of exercise selected by the option holder (other than the
method of exercise set forth in subparagraph 2 (c) (i) if the Company
determines, in its sole discretion, that such method of exercise would have an
adverse tax, accounting or other effect on the Company or if, in the opinion of
counsel to the Company, such method would not be in full compliance with all
applicable laws and regulations, including, but not limited to, subjecting the
holder to liability under Section 16 of the Securities Exchange Act of 1934, as
amended, if applicable.
(d) Abandonment. Optionee at any time may elect in writing to
abandon an option in respect of all or part of the number of shares of Stock as
to which the option shall not have been exercised.
(e) Exercise upon Death or Termination of Employment.
(i) In the event of the death of the Optionee while
a non-employee director of the Company or within three months after Optionee
ceases to be a non-employee director because of permanent disability or
retirement, this option may be exercised, to the extent that Optionee was
entitled to do so at the date he ceases to be a non-employee director, by the
person or persons to whom the Optionee's rights under this option pass 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, within two years after the
date of Optionee's death, but in no event later than the expiration date
specified in subparagraph (a) of this paragraph 2.
(ii) If Optionee shall cease to be a non-employee
director of the Company because of permanent disability or retirement, Optionee
may exercise the option to the extent that he is entitled to do so at the date
he ceases to be a non-employee director, at any time, or from time to time,
within three months of the date he ceases to be a non-employee director, but in
no event later than the expiration date specified in subparagraph (a) of this
paragraph 2.
(iii) If Optionee ceases to be a non-employee
director for any reason other than death,
-3-
permanent disability or retirement as aforesaid, all right to exercise this
option shall terminate at the date Optionee ceases to be a non-employee
director.
(f) Nontransferability. This option shall not be transferable
other than by will or by the laws of descent and distribution. During the
life-time of Optionee, this option shall be exercisable only by him.
(g) Adjustments. In the event of any change in the common
stock of the Company by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any rights offering to purchase common stock at a price substantially
below fair market value, or of any similar change affecting the common stock,
then in any such event the number and kind of shares subject to this option and
their purchase price per share shall be appropriately adjusted consistent with
such change in such manner as the Company's Board of Directors may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to Optionee hereunder. Any adjustment so made shall be final and binding upon
Optionee.
(h) No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Stock subject to this option prior
to the date of issuance to him of a certificate or certificates for such shares.
(i) No Right to Continue as a Director. This option shall not
confer upon Optionee any right with respect to continuance as a director on the
Company's Board of Directors, nor shall it interfere in any way with the right
of the Board of Directors to remove him at any time or of the Company's
stockholders to deny him reelection.
(j) Compliance with Law and Regulations. This option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all applicable federal and state laws, rules and regulations and to such
approvals by any government or regulatory agency as may be required. The Company
shall not be required to issue or deliver any certificates for shares of Stock
prior to (i) the listing of such shares on any stock exchange on which-the Stock
may then be listed and (ii) the completion of any registration or qualification
of such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise, or the receipt of shares of Stock pursuant thereto, would be contrary
to applicable law.
-4-
3. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in respect of the matters set forth
herein, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
4. Amendment and Waiver. This Agreement may be amended, modified,
supplemented or changed in whole or in part only by a written agreement making
express reference to this Agreement that is executed by all parties hereto. Any
of the terms and conditions of this Agreement may be waived in whole or in part,
but only by a written agreement making express reference to this Agreement and
executed by the party against whom the waiver is asserted. The failure of any
party hereto to insist upon strict performance of or compliance with the
provisions of this Agreement shall not constitute a waiver of any right of any
such party hereunder or prohibit or limit the right of such party to insist upon
strict performance or compliance at any other time.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and upon each of their respective heirs,
executors, administrators, successors and permitted assigns.
6. Nonassignment. This Agreement may not be assigned, nor any
obligations delegated, in whole or in part, without the express prior written
consent of the parties hereto, with such consent in all cases to be conditioned
upon assignee's agreement to be bound by the terms and conditions of this
Agreement.
7. Notices. Any notice, request, instruction or other document or
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to be given upon (i) delivery in person, (ii) five
(5) days after being deposited in the mail, first class postage prepaid, for
mailing by certified or registered mail, (iii) one day after being deposited
with an overnight courier, charges prepaid for next day delivery, or (iv) when
transmitted by facsimile, upon receipt of a facsimile confirmation by the
intended recipient, with a copy simultaneously sent as provided in clauses (ii)
or (iii), in every case addressed as follows (or at such other address or
addresses as may be specified from time to time pursuant to a notice sent in
accordance with this section):
If to Optionee, delivered or marked to:
Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
-5-
If to the Company, delivered or marked to:
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy delivered to:
Xxxx X. Xxxxxx, Esquire
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
FAX Number: (000) 000-0000
8. Section Headings. The Section headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning or interpretation of this Agreement or any of their terms and
conditions.
9. Further Assurances. The parties agree to execute, make, acknowledge
and deliver such instruments, agreements and other documents as may reasonably
be required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
10. Construction. As used in this Agreement, any reference to the
masculine, feminine or neuter gender shall include all genders, the plural shall
include the singular, and the singular shall include the plural. With respect to
each and every term and condition in this Agreement and all agreements and
instruments subject to the terms hereof, the parties understand and agree that
the same have or has been mutually negotiated, prepared and drafted, and that if
at any time the parties hereto desire or are required to interpret or construe
any such term or condition or any agreement or instrument subject hereto, no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto
11. Counterparts. This Agreement may be signed in any number of
duplicate originals with the same effect as if the signature to each original
were on the same instrument.
12. Severability. If any of the terms or provisions of this Agreement
are deemed invalid or unenforceable, the remaining terms and conditions shall
continue in full force and effect as if the invalid or unenforceable terms or
condition were not a part thereof.
-6-
13. Governing Law. This Agreement shall be governed as to all matters
including validity, construction and performance by and under the laws of the
State of Virginia without reference to its conflicts of law rules or principles.
Any judicial proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Virginia, and, by execution and delivery
of this Agreement, each of the parties hereto accepts the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby connection with this Agreement.
IN WITNESS WHEREOF, Optionee and the Company have executed under seal
this Stock Option Agreement as of the date first above written.
OPTIONEE
/s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
PRECISION AUTO CARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President
-7-
EXERCISE NOTICE
---------------
The undersigned, being a party to that certain Stock Option Agreement
dated as of ________________ __, 1998 by and among Precision Auto Care, Inc.
(tile "Company") and the undersigned, hereby exercises the Option referred to
therein and elects to purchase shares of Stock from the Company, pursuant to the
terms of the Stock Option Agreement. Please schedule a closing for the purchase
and sale of the shares of such Stock in accordance with the terms of the Stock
Option Agreement.
----------------------------------
Xxxxxxx X. Xxxxx
Date:_____________________________
-8-
SCHEDULE 1 -- NOTATIONS AS TO PARTIAL EXERCISE
================================================================================================================================
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
================================================================================================================================
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================================================================================================================================
-9-
