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EXHIBIT 4.5
AMERICAN HOMESTAR CORPORATION
REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT
THIS REPLACEMENT INCENTIVE STOCK OPTION AGREEMENT (this "Agreement")
is made and entered into as of the 5th day of June, 1997, between American
Homestar Corporation, a Texas corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇
(the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has entered into that certain Securities Purchase
Agreement by and among the Company, Brilliant Holding Corporation ("Brilliant")
and the holders of all of the outstanding securities of Brilliant, dated as of
March 6, 1997, as amended by the First Amendment to the Securities Purchase
Agreement by the Company, Brilliant and the holders of all of the outstanding
securities of Brilliant, dated June 5, 1997 (the "Acquisition Agreement");
WHEREAS, under the Acquisition Agreement the securityholders of
Brilliant will receive in exchange for their securities (or in exchange for the
termination of their securities) of Brilliant, shares, or in the case of
optionholders, options to acquire shares, of the common stock, par value $0.05
per share, of the Company ("Company Common Stock"), (which shares and options
to acquire shares of Company Common Stock in the aggregate will equal 500,000
shares of Company Common Stock; and
WHEREAS, the Optionee held incentive stock options (the "Old Options")
to acquire a certain number of shares of Brilliant and pursuant to the terms of
the Acquisition Agreement, the Company desires to grant, and the Optionee
desires to receive, options to acquire a certain number of shares of Company
Common Stock as set forth below (the "New Options") in substitution for the Old
Options, which Old Options shall terminate under the terms of this Agreement;
WHEREAS, the number of shares of Company Common Stock subject to the
New Options was determined according to the same ratio as that used to
determine the number of shares of Company Common Stock payable for each share
of Brilliant under the Acquisition Agreement; and
WHEREAS, the parties desire that the substitution of the New Options
for the Old Options qualify as a substitution of new options to which Section
424(a) of the Internal Revenue Code of 1986, as amended, applies;
NOW, THEREFORE, in consideration of these premises and the covenants
contained in the Acquisition Agreement, the parties agree that the following
shall constitute the Agreement between the Company and the Optionee:
1. Grant of Option. Subject to the terms and conditions set
forth in this Agreement, the Company hereby grants to the Optionee the option
(the "Option") to purchase from the Company during the period ending December
31, 1998, 2,058 shares of Common Stock at a price of $9.11 per share. This
Option is immediately exercisable upon the Closing (as defined in the
Acquisition
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Agreement) and upon such Closing, the Old Options will immediately terminate
and be of no further force or effect.
This option shall terminate as of the date the Optionee ceases to be
an employee of the Company or a subsidiary of the Company. Notwithstanding the
foregoing, if the Optionee retires with the consent of the Company or a
subsidiary of the Company, this Option shall terminate three (3) months after
retirement, except as provided in the following sentence. If the Optionee
shall die while he is an employee of the Company or a subsidiary of the
Company, or within three (3) months after retirement with the consent of the
Company or a subsidiary of the Company, this Option may be exercised (to the
extent the Optionee would have been entitled to do so) by a legatee(s) of the
Optionee under his last will, or by a personal representative(s), at any time
within one (1) year after the earlier of death or retirement by consent.
2. Notice of Exercise. This Option may be exercised, in whole or
in part, from time to time, in accordance with the provisions of this
paragraph, by written notice to the Compensation Committee of the Board of
Directors of the Company (the "Committee") at the address provided below, which
notice shall:
(a) specify the number of whole shares of Common Stock to
be purchased and the exercise price to be paid
therefor;
(b) if the person exercising this Option is not the
Optionee, contain or be accompanied by evidence
satisfactory to the Committee of such person's right
to exercise this Option;
(c) state that it is the Optionee's present intention to
acquire the shares being purchased for investment and
not for resale; and
(d) be accompanied by payment in full of the exercise
price in the form of cash or by certified or
cashier's check payable to the order of the Company
or, with the consent of the Committee, with shares of
Common Stock owned by the Optionee or by a
combination of cash and such shares. In the event
that shares of Common Stock are used as partial or
full payment, each share shall be valued at the Fair
Market Value (as defined below) thereof on the date
of exercising the Option.
For purposes of this Agreement, "Fair Market Value" of shares of
Common Stock shall be determined in good faith by the Committee, provided that
(i) if the shares are actively traded on any national securities exchange or
reported by NASDAQ on a basis which reports closing sales prices, Fair Market
Value shall be the closing sales price per share of the shares for the business
day immediately preceding the valuation date; (ii) if the shares are otherwise
traded over the counter, Fair Market Value shall be the arithmetic mean of the
bid and asked prices for the shares, as reported by NASDAQ, for the business
day immediately preceding the valuation date; and (iii) if the shares are not
traded, Fair Market Value shall be determined by the Committee which shall, in
making such
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determination, consider, where applicable, among other factors, the existence
and extent of a private market for the shares and a public market for the
Company's securities of the same class, if any; the price at which the shares
were acquired, if applicable, by the Company; the estimated period of time, if
any, during which the shares will be freely marketable; the estimated amount of
floating supply of shares available; changes in the financial condition and
prospects of the Company; the existence of merger proposals or payment of a
stock dividend on the shares, a subdivision or combination of shares, a
reclassification of the shares, a merger or consolidation, or other like
changes in the shares.
3. Exercise of Option. The Optionee represents that the shares
of Common Stock acquired upon exercise of this Option shall be acquired for the
Optionee's own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the "Act"), or other
applicable federal or state securities laws. If the Committee so determines,
any certificates for shares issued upon exercise of this Option shall bear a
legend to the effect that the shares have been so acquired. The Company may,
but in no event shall be required to, bear any expenses of complying with the
Act, other applicable securities laws, or the rules and regulations of any
national securities exchange or other regulatory authority in connection with
the registration, qualification or transfer, as the case may be, of any shares
of Common Stock acquired upon the exercise of this Option. The foregoing
representation and restrictions on the transfer of the shares of Common Stock
shall be inoperative if (a) the Company has been previously furnished with an
opinion of counsel, satisfactory to it, to the effect that such transfer will
not involve any violation of the Act or other applicable federal or state
securities laws, or (b) the shares have been fully registered in compliance
with the Act and other applicable securities laws.
4. Adjustments. After any merger of one or more corporations
into the Company, any merger of the Company into another corporation, any
consolidation of the Company as a party thereto involving any exchange,
conversion, adjustment or other modification of the outstanding shares of
Common Stock, Optionee shall, at no additional cost, be entitled, upon any
exercise of his Option, to receive (subject to any required action by
stockholders), in lieu of the number of shares of Common Stock as to which the
Option shall then be so exercised, the number and class of shares of stock or
other securities or any other property to which the Optionee would have been
entitled pursuant to the terms of the agreement of merger, consolidation, or
other reorganization, if, at the time of the merger, consolidation or other
reorganization, the Optionee had been a holder of record of the number of
shares of Common Stock equal to the number of shares of Common Stock as to
which the Option shall then be so exercised. Comparable rights shall accrue to
Optionee in the event of successive mergers, consolidations or reorganization
of the character described above. The foregoing adjustments and the manner of
application of the foregoing provision shall be determined by the Committee in
its sole discretion. Any adjustment may provide for the elimination of any
fractional share of Common Stock which might otherwise become subject to an
Option.
5. Transferability of Option. This Option shall not be
transferable except by will or by the laws of descent and distribution. During
the Optionee's lifetime, this Option may be exercised only by the Optionee or
by the Optionee's guardian or legal representative. No assignment or transfer
of this Option, whether voluntary or involuntary, by operation of law or
otherwise, except a transfer
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by will or by the laws of descent or distribution, shall vest in the assignee
or transferee any interest or right whatsoever in this Option.
6. No Rights as Stockholder. The Optionee shall not be deemed a
stockholder of the Company with respect to any of the shares of Common Stock
subject to this Option, except to the extent that such shares shall have been
purchased and transferred to the Optionee. The Company shall not be required
to issue or transfer any certificates for shares of Common Stock purchased upon
exercise of this Option until all applicable requirements of law have been
complied with and such shares shall have been duly qualified for trading or
listed on any quotations system or securities exchange on which the shares of
Common Stock may then be trading or listed.
7. Limitation on Rights. This Option shall not confer on the
Optionee any right to continue as an employee of the Company or a subsidiary of
the Company or affect the Company's or any subsidiary's right to terminate the
Optionee's service at any time, and nothing contained herein shall be deemed a
waiver or modification of any provision contained in any agreement between the
Optionee and the Company or a subsidiary of the Company. This Option shall not
affect the right of the Company or any subsidiary thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup or
otherwise reorganize.
8. Committee's Powers. The Committee shall have the powers to
construe the terms of this Agreement and to make all other determinations and
perform all other acts as necessary or advisable for administering the terms
hereof. Any determination made by the Committee shall be final, binding and
conclusive on the Optionee.
9. Restrictions on Shares. At any time the shares of Common
Stock are not actively traded on any national securities exchange, on NASDAQ,
or otherwise over the counter, the Company reserves to itself or its assignee
(a) the right of first refusal to purchase shares of Common Stock issued
pursuant to this Option (the "Option Shares"), or any portion thereof, that an
Optionee (or a subsequent transferee) may propose to transfer to a third party,
and (b) the right to repurchase all Option Shares, or any portion thereof, held
by an Optionee upon the Optionee's termination of employment with the Company
or of any subsidiary thereof for any reason whatsoever. The purchase shall be
completed within fifteen (15) days of the date the Company sends notice that it
will exercise its right to purchase the Option Shares, or within three (3)
months and fifteen (15) days of the date of termination of employment. The
price to be paid for the Option Shares shall be their Fair Market Value on the
date of purchase by the Company, or its assignee. Payment shall be made in
cash on the date of the purchase unless the Optionee and Company shall agree
otherwise.
10. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date which it is personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance
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herewith. The Committee or Optionee may change, at any time and from time to
time, by written notice to the other, the address previously specified for
receiving notices. Until changed in accordance herewith, the Committee and the
Optionee specify their respective addresses as set forth below:
Committee: Compensation Committee
American Homestar Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Optionee: ▇▇▇▇▇▇ ▇▇▇▇▇
Brilliant Plant
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Headings. The titles and headings of the paragraphs are
included for convenience or reference only and are not to be considered in
constriction of the provisions hereof.
12. Entire Agreement and Amendments. This Agreement embodies the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes any prior arrangements and understandings
relating to the subject matter hereof. This Agreement may be amended, modified
or superseded, and any of the terms and provisions hereof may be waived, but
only by a written instrument executed by the parties hereto.
13. Governing Law. All questions arising with respect to the
provisions of this Option shall be determined by application of the laws of the
State of Texas.
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IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first set forth written.
THE COMPANY: AMERICAN HOMESTAR
CORPORATION
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Its: President
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THE OPTIONEE: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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