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Exhibit 4.9
XXXXXX OIL AND GAS COMPANY
STOCK OPTION AGREEMENT
AMENDED ___________________
This Amended Stock Option Agreement amended as of _________________ by
and between XXXXXX OIL AND GAS COMPANY (the "Company") and __________________
(the "Optionee").
It is hereby agreed as follows:
1. GRANT OF OPTION; CONSIDERATION. The Company hereby confirms
the grant to the Optionee on __________________ of a stock option to purchase up
to ___________ shares of the Company's Common Stock, par value $0.01 per share
(the "Shares"), at an exercise price of $7.75 per share (the "Option"). The
Option granted hereunder is not intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended. The terms of the Option are subject to adjustment in certain
circumstances, as herein.
The Optionee shall be required to pay no consideration for
the grant of the option.
2. OPTION TERMS. Subject to all of the terms and conditions of
this Agreement, including acceleration of exercisability in the event of a
Change of Control (as provided under Section 3), the Optionee may purchase up to
________ Shares upon exercise of this Option on or after August 10, 1993, an
additional ________ Shares upon exercise of this Option on or after August 10,
1994, an additional ________ Shares upon exercise of this Option on or after
August 10, 1995. This Option, to the extent it has not been previously
exercised, shall expire at 5:00 p.m. (Pacific Time) on August 10, 2003.
The Option may be exercised in whole or in part (to the
extent then exercisable) by delivery to and receipt by the Secretary of the
Company at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxxx 00000, of a
written notice, signed by the Optionee, specifying that this Option is being
exercised for the number of Shares which the Optionee wishes to purchase,
accompanied by payment in full of the exercise price in cash (including by
check) or in such manner as may then be permitted under Rules and Regulations
adopted by the Board. As soon as practicable after the valid exercise of the
Option, the Company shall deliver to the Optionee one or more stock certificates
representing the Shares so purchased, with any requisite legend affixed.
3. OPTION VESTING UPON CHANGE OF CONTROL OF THE COMPANY. In the
event of a Change of Control of the Company, the vesting of Optionee's Options
shall be automatically accelerated, so that all Options outstanding at the time
of such Change of Control will be exercisable immediately.
"Change of Control" shall mean any of the following events:
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(A) any "Person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than Company, any trustee or
other fiduciary holding securities under an employee benefit plan
of Company, or any company owned, directly or indirectly, by the
stockholders of Company in substantially the same proportions as
their ownership of stock of Company) is or becomes the "Beneficial
Owner" as defined in Rule 13d-3 under the Exchange Act, directly
or indirectly, of 25% or more of the combined voting power of
Company's outstanding securities;
(B) individuals who constitute the Board on the effective date of
the Plan (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person
becoming a director subsequent to such effective date whose
election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the
directors comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of Company in which
such person is named as a nominee for director, without objection
to such nomination) shall be, for purposes of this clause (B),
considered as though such person were a member of the Incumbent
Board;
(C) the stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company,
a reverse stock split of outstanding voting securities, or
consummation of any such transaction if stockholder approval is
not obtained, other than (1) any such transaction which would
result in at least 50% of the total voting power represented by
the voting securities of the surviving entity outstanding
immediately after such transaction being "Beneficially Owned" (as
defined above) by 75% or more of the holders of outstanding voting
securities of the Company immediately prior to the transaction,
with the voting power of each such continuing holder relative to
other such continuing holders not substantially altered in the
transaction, or (2) a merger or consolidation effected to
implement a recapitalization of Company (or similar transaction)
in which no "Person" (as defined above) acquires more than 25% of
the combined voting power of the Company's then outstanding
securities; or
(D) the stockholders of Company approve a plan of complete
liquidation of Company or an agreement for the sale or disposition
by Company of all or substantially all of Company's assets.
Notwithstanding anything in the foregoing to the contrary, no Change of
Control shall be deemed to have occurred with respect to any particular Optionee
by virtue of any transaction which results in such Optionee, or a group of
Persons which includes such Optionee, acquiring, directly or indirectly, 25% or
more of the combined voting power of the Company's outstanding securities.
4. CAPITAL CHANGES. In the event any changes are made to the shares
of Common Stock (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend in excess of one percent (1%) at any single
time, stock split, combination of shares, exchange of shares, extraordinary cash
dividend, change in corporate structure or otherwise), the Board or
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Committee shall, in order to prevent dilution or enlargement of Participants'
rights, make appropriate adjustments in: (i) the number and kind of shares of
Common Stock theretofore made subject to Optionee's Options, and/or in the
exercise price of said shares. If any of the foregoing adjustments shall result
in a fractional share, the fraction shall be disregarded, and the Company shall
have no obligation to make any cash or other payment with respect to such a
fractional share.
5. TRANSFERABILITY. All rights or interests of Optionee in the
Option may be pledged, encumbered, or hypothecated to or in favor of any third
party and may be subject to any lien, obligation, or liability of the Optionee
to any third party. The Option or any portion thereof may be transferable to any
third party by the Optionee with the prior consent of the Company.
6. COMPLIANCE WITH LAWS AND REGULATIONS. The obligation of the
Company to deliver Shares upon the exercise of this Option is conditioned upon
compliance by the Optionee and by the Company with all applicable laws and
regulations, including regulations of federal and state agencies.
7. NO RIGHTS AS A STOCKHOLDER. An Optionee shall have no rights
as a stockholder with respect to any shares of Common Stock subject to
Optionee's Option, until such Optionee's Option is exercised. Except as provided
in Section 4, no adjustment shall be made in the number of shares of Common
Stock issued to a Optionee, or in any other rights of the Optionee upon exercise
of an Optionee's Option, by reason of any dividend, distribution, or other right
granted to stockholders for which the record date is prior to the date of
exercise of the Optionee's Option.
8. BINDING EFFECT; INTEGRATION; NO OTHER RIGHTS CREATED. This
Agreement shall be binding upon the heirs, executors, administrators and
successors of the parties. This Agreement constitutes the entire agreement
between the parties with respect to the Option, and supersedes any prior
agreements or documents with respect to the Option. No amendment, alteration,
suspension, discontinuation or termination of this Agreement which may impose
any additional obligation upon the Company or impair the rights of the Optionee
with respect to the Option shall be valid unless in each instance such
amendment, alteration, suspension, discontinuation or termination is expressed
in a written instrument duly executed in the name and on behalf of the Company
and by the Optionee. Neither this Agreement nor the grant of the Option shall
constitute an employment agreement.
XXXXXX OIL AND GAS COMPANY
BY:
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TITLE: Chief Executive Officer
OPTIONEE:
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