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EXHIBIT 10.1
OPTION TO PURCHASE SHARES OF COMMON STOCK
THIS AGREEMENT is dated as of _______, and is made by and
between DAISYTEK INTERNATIONAL CORPORATION, a Delaware corporation (hereinafter
referred to as "COMPANY") and _______________ (hereinafter referred to as
"DIRECTOR"):
BACKGROUND
1. The Company has adopted a Non-Employee Director Stock
Option and Retainer Plan (the "Plan"). The purposes of the Plan are as
follows:
(1) To further the growth, development and financial success
of the Company by providing incentives to its non-employee directors by
assisting them to become owners of the Company's Common Stock and thus to
benefit directly from its growth, development and financial success.
(2) To enable the Company to obtain and retain the services of
qualified non-employee directors in order to contribute to the long-range
success of the Company by providing and offering them an opportunity to become
owners of the Company's Common Stock.
2. This Option is issued to the Director in accordance with
the terms and provisions of the Plan and in consideration of the Director
serving as a non-employee director of the Company.
I. DEFINITIONS
Except as otherwise defined herein, words and terms defined in
the Plan shall have the same meaning when used herein.
II. GRANT OF OPTION
2.1 GRANT OF OPTION. For good and valuable consideration, on
the date hereof the Company irrevocably grants to the Director the option (the
"OPTION") to purchase any part or all of ____________ shares of the Company's
Common Stock, $.01 par value (the "COMMON STOCK"), subject to and upon the
terms and conditions set forth in this Agreement.
2.2 PURCHASE PRICE. The purchase price of the shares of
Common Stock covered by the Option shall be ____________________________ per
share without commission or other charge.
2.3 ADJUSTMENTS IN OPTION. In the event that the outstanding
shares of Common Stock subject to the Option are changed into or exchanged for
a different number or kind of shares of the Company or other securities of the
Company by reason of merger, consolidation, recapitalization, reclassification,
stock split up, stock dividend or combination of shares, the Board shall make
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appropriate and equitable adjustment in the number and kind of shares as to
which the Option, or portions thereof then unexercised, shall be exercisable.
Such adjustment in the Option shall be made without change in the total price
applicable to the unexercised portion of the Option (except for any change in
the aggregate price resulting from rounding-off of share quantities or prices)
and with any necessary corresponding adjustment in the Option price per share.
Any such adjustment made by the Board shall be final and binding upon the
Director, the Company and all other interested persons.
2.4 OPTION SUBJECT TO PLAN. This Option is subject in all
respects to the terms and provisions of the Plan, which are incorporated by
reference herein. The Director acknowledges receipt and review of the Plan and
agrees to be bound by the terms thereof. This Option shall be treated as a
non-qualified option under the applicable provisions of the Code.
III. PERIOD OF EXERCISABILITY
3.1 COMMENCEMENT OF EXERCISABILITY.
(a) This Option may not be exercised in whole or in part
during the six month period following the date hereof.
(b) Subject to the provisions of paragraph (c) below, the
Option granted hereunder shall be subject to the following cumulative vesting
schedule:
(i) Until the date which is one year from the date hereof, the
Option shall not be vested and shall not be exercisable as to any of the shares
subject hereto;
(ii) From and after the date which is one year from the date
hereof, the Option shall vest and be exercisable as to 15% of the original
number of shares subject hereto;
(iii) From and after the date which is two years from the date
hereof, the Option shall vest and be exercisable as to 50% of the original
number of shares subject hereto; and
(iv) From and after the date which is three years from the date
hereof, the Option shall be fully vested and be exercisable as to 100% of the
number of shares subject hereto.
(c) Upon the Termination of the Director, such portion of this
Option which has not then vested and become exercisable shall automatically
become fully vested and exercisable, provided, however, that such Termination
shall not be less than one year from the date hereof.
3.2 DURATION OF EXERCISABILITY. The installments provided
for in Section 3.1 are cumulative. Each such installment which becomes
exercisable pursuant to Section 3.1 shall remain exercisable until it becomes
unexercisable under Section 3.3.
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3.3 EXPIRATION OF OPTION. This Option may not be exercised
to any extent after the first to occur of the following events:
(i) The expiration of ten years form the date hereof; or
(ii) Except in the event the Director is disabled (within the
meaning of Section 22(e)(3) of the Code), the expiration of three months from
the date of the Director's Termination for any reason other than the Director's
death; or
(iii) In the event the Director is disabled (within the
meaning of Section 22(e)(3) of the Code), the expiration of one year from the
date of the Director's Termination for any reason other than the Director's
death unless the Director dies within said one-year period; or
(iv) The expiration of one year from the date of the
Director's death with respect to all Options held by the Director.
IV. EXERCISE OF OPTION
4.1 PERSON ELIGIBLE TO EXERCISE. During the lifetime of the
Director, only he may exercise the Option or any portion thereof; provided,
however, that unless otherwise prohibited by Rule 16b-3, the Director may
transfer all or any portion of this Option to his spouse or immediate family
member of any trust for the benefit thereof. After the death of the Director,
any exercisable portion of the Option may, prior to the time when the Option
becomes unexercisable under Section 3.3, be exercised by his personal
representative or by any person empowered to do so under the Director's will or
under the then applicable laws of descent and distribution.
4.2 PARTIAL EXERCISE. Any exercisable portion of the Option
or the entire Option, if then wholly exercisable, may be exercised in whole or
in part at any time prior to the time when the Option or portion thereof
becomes unexercisable under Section 3.3; provided, however, that each partial
exercise shall be for not less than one- hundred (100) shares (or the minimum
installment set forth in Section 3.1, if a smaller number of shares) and shall
be for whole shares only.
4.3 MANNER OF EXERCISE. The Option, or any exercisable
portion thereof, may be exercised solely by delivery to the Secretary or his
office of all of the following (except as otherwise waived by such officer)
prior to the time when the Option or such portion becomes unexercisable under
Section 3.3:
(a) Notice in writing signed by the Director or the other
person then entitled to exercise the Option or portion, stating that the Option
or portion is thereby exercised, such notice complying with all applicable
rules established by the Committee; and
(b) (i) Full payment (in cash or by check) for the shares
with respect to which such Option or portion is exercised; or
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(ii) Subject to the timing requirements of Section 4.4, (A)
shares of the Company's Common Stock owned by the Director duly endorsed for
transfer to the Company or (B) shares of the Company's Common Stock issuable to
the Director upon exercise of this Option, in each case, with a fair market
value (as determined under Section 4.2(b) of the Plan) on the date of Option
exercise equal to the aggregate Option price of the Shares with respect to
which such Option or portion is thereby exercised; or
(iii) Any combination of the consideration provided in the
foregoing subsections (i) and (ii); and
(c) The payment to the Company (or other employer corporation)
of all amounts which it is required to withhold under federal, state or local
law in connection with the exercise of the Option; provided, that subject to
the timing requirements of Section 4.4, any combination of the following may be
used to make all or part of such payment: (i) shares of the Company's Common
Stock owned by the Director duly endorsed for transfer or (ii) shares of the
Company's Common Stock issuable to the Director upon exercise of the Option, in
each case, valued in accordance with Section 4.2(b) of the Plan, at the date of
Option exercise; and
(d) A bona fide written representation and agreement, in a
form satisfactory to the Committee, signed by the Director or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Director or other person then entitled to exercise
such Option or portion will indemnify the Company against, and hold it free and
harmless from, any loss, damage, expense or liability resulting to the Company
if any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may, in its
absolute discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel acceptable to it to
the effect that any subsequent transfer of shares acquired upon exercise of an
Option does not violate the Securities Act, and may issue stop-transfer orders
covering such shares. Share certificates evidencing stock issued on exercise
of this Option shall bear an appropriate legend referring to the provisions of
this subsection (d) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (d) shall,
however, not be required if the shares to be issued pursuant to such exercise
have been registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(e) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the Director,
appropriate proof of the right of such person or persons to exercise the
Option.
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4.4 CERTAIN TIMING REQUIREMENTS. Shares of the Company's
Common Stock issuable to the Director upon exercise of the Option may be used
to satisfy the Option price or the tax withholding consequences of such
exercise only (i) during the trading window period following the date of
release of the quarterly or annual summary statement of sales and earnings of
the Company as may be established by the Company for its senior executives from
time to time or (ii) pursuant to an irrevocable written election by the
Director to use Shares of the Company's Common Stock issuable to the Director
upon exercise of the Option to pay all or part of the Option price or the
withholding taxes made at least six months prior to the payment of such Option
price or withholding taxes.
4.5 CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The shares
of stock deliverable upon the exercise of the Option, or any portion thereof,
may be either previously authorized but unissued shares or issued shares which
have then been reacquired by the Company. Such shares shall be fully paid and
nonassessable. The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the exercise of
the Option or portion thereof prior to fulfillment of all of the following
conditions (except as otherwise waived by the Committee):
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification
of such shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory body, which the Committee shall, in its absolute discretion, deem
necessary or advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer corporation)
of all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Board may from time to time establish for reasons
of administrative convenience.
4.6 RIGHTS AS A SHAREHOLDER. The holder of the Option shall
not be, nor have any of the rights or privileges of, a shareholder of the
Company in respect of any shares purchasable upon the exercise of any part of
the Option unless and until certificates representing such shares shall have
been issued by the Company to such holder.
V. OTHER PROVISIONS
5.1 ADMINISTRATION. The Committee shall have the power to
interpret this Agreement and to adopt such rules for the administration,
interpretation and application hereof as are
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consistent therewith and to interpret or revoke any such rules. All actions
taken and all interpretations and determinations made by the Committee in good
faith shall be final and binding upon the Director, the Company and all other
interested persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
this Option.
5.2 OPTION NOT TRANSFERABLE. Except as otherwise set forth
herein or in the Plan, neither the Option nor any interest or right therein or
part thereof shall be liable for the debts, contracts or engagements of the
Director or his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment of any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect; provided, however, that this
Section 5.2 shall not prevent transfers by will or by the applicable laws of
descent and distribution.
5.3 SHARES TO BE RESERVED. The Company shall at all times
during the term of the Option reserve and keep available such number of shares
of stock as will be sufficient to satisfy the requirements of this Agreement.
5.4 NOTICES. Any notice to be given under the terms of this
Agreement to the Company shall be addressed to the Company in care of its
Secretary, and any notice to be given to the Director shall be addressed to him
or her at the address set forth in the Company's records. By a notice given
pursuant to this Section 5.4, either party may hereafter designate a different
address for notices to be given to such party. Any notice which is required to
be given to the Director shall, if the Director is then deceased, be given to
the Director's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 5.4. Any notice shall be deemed duly given upon receipt and shall be
delivered by hand, reputable overnight courier or deposited (with postage
prepaid) in a post office or branch post office regularly maintained by the
United States Postal Service.
5.5 TITLES. Titles are provided herein for convenience only
and are not to serve as a basis for interpretation or construction of this
Agreement.
In Witness Whereof, the Company and the undersigned Director
have executed and delivered this Option as of the day and year above written.
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(Director)
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