Exhibit 10.62
Page 38
Non-Qualified Stock Option
Agreement for Xxx Xxxxx
NON-QUALIFIED STOCK OPTION AGREEMENT ("Option Agreement") dated as of the
2nd day of July, 1996 providing for the granting of an option by Trimark
Holdings, Inc., a Delaware corporation (the "Company"), to XXX XXXXX, an
employee of the Company or of a subsidiary (the "Employee").
The Board of Directors of the Company has duly adopted, and the
stockholders of the Company have approved, the 1990 Stock Option and Stock
Appreciation Rights Plan of Trimark Holdings, Inc., as amended from time to time
(the "Plan"), which is incorporated herein by reference. Unless other wise
expressly stated, all defined terms herein shall have the same meaning ascribed
to them in the Plan. In accordance with Paragraph 2 of the Plan, the Stock
Option Plan Committee of the Board of Directors of the Company (the "Committee")
has determined that the Employee is to be granted an option under the Plan to
buy shares of the Company's common stock, par value $.001 (the "Shares"), on the
terms and subject to the conditions hereinafter provided.
I. NUMBER OF SHARES, OPTION PRICE. The Company hereby grants to the Employee a
non-qualified option (the "Option"), to purchase 42,000 Shares (the "Option
Shares") at a price per Share (the "Option Price") of $5.38 with respect to 24,
000 shares and $8.00 with respect to 18,000 shares on the terms and subject to
the conditions set forth herein. The Employee shall not have any of the rights
of a stockholder with respect to the Option Shares covered hereby unless and
until the Employee has paid the Option Price with respect thereto.
II. PERIOD OF OPTION AND CONDITIONS OF EXERCISE.
A. The term of the Option shall commence on July 2, 1996 (the "Date of
Grant") and terminate upon the earlier of July 2, 2006 (the "Expiration
Date") and the time at which the Option is completely terminated pursuant
to Section 3 or Section 4 hereof. Upon the termination of the Option, all
rights of the Employee hereunder and under the Plan shall cease. Employee
understands and agrees that the Option granted to him is intended to comply
with the provisions of Rule 16b-3 under the Securities Exchange Act of
1934, as amended, and is subject to the express terms thereof and the
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interpretations of the Securities and Exchange Commission thereunder.
B. The Option, subject to the following provisions of this Section 2 and
to Section 3, shall become exercisable with respect to 33 1/3% of the
Shares subject to such Option on August 8, 1997 and shall become
exercisable with respect to an additional 33 1/3% of the Shares on August
8, 1998, and an additional 33 1/3% of the Shares on August 8, 1999.
C. The Option may be exercised only to purchase whole Shares, and in no
case may a fraction of a Share be purchased. The right of the Employee to
purchase Option Shares may be exercised in whole at any time or in part
from time to time after and to the extent that the Option becomes
exercisable and prior to the earlier of the Expiration Date and, as to any
portion of the Option, the time at which such portion is terminated
pursuant to Section 3 or Section 4. No partial exercise of the Option for
less than ten (10) Option Shares is permissible.
III. TERMINATION OF EMPLOYMENT. Subject to Section 4 hereof, the Option
(whether or not exercisable) shall terminate three (3) months after the Employee
ceases to be a full-time employee of the Company or any of its subsidiaries;
provided, however, that in the event of the Employee's termination for Cause (as
defined below), the Option shall terminate immediately. Notwithstanding the
foregoing provisions and Section 4, no portion of the Option which is
unexercisable as of the date Employee ceases to be a full-time Employee of the
Company or any of its subsidiaries shall thereafter become exercisable. For
purposes of the Option Agreement, "Cause" means the engaging by the Employee in
gross and willful misconduct involving a substantial and material obligation
under an employment agreement between the Employee and the Company (or
subsidiary) or, if no such employment agreement is in effect, Cause means
Employee's negligence or misconduct or habitual failure or inability to perform
his employment duties.
IV. DEATH OR PERMANENT DISABILITY OF EMPLOYEE. If the Employee dies or becomes
permanently disabled while the Employee is employed by the Company or one of its
subsidiary corporations (as defined in Section 425(f) of the Code), the Option
shall expire one year after the date of such death or permanent disability
unless by its terms it expires sooner. During such period after death, such
Option may, to the extent that it remained unexercised (but exercisable by the
Employee according to the
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Option's terms) on the date of such death, be exercised by the person or persons
to whom the rights under the Option shall pass by the Employee's will or by the
laws of descent and distribution. The term "permanent disability" shall have
the meaning set forth in the Company's disability policy then in effect which
shall allow Employee to receive disability benefits thereunder. If there is no
disability policy in effect at the date of Employee's potential disability and
Employee is unable to render services for a period of six consecutive months
upon the determination of two physicians Board certified in the field of
disability (in the case of dispute as to permanent disability), Employee shall
be deemed to be permanently disabled.
V. NON-TRANSFERABILITY OF OPTION. The Option and this Option Agreement shall
not be transferable otherwise than by will or by the laws of descent and
distribution; and the Option may be exercised, during the lifetime of the
Employee, only by the Employee, regardless of any community property interest
therein of the spouse of the Employee, or such spouse's successors in interest.
If the spouse of the Employee shall have acquired a community property interest
in the Option, the Employee, or the Employee's permitted successors in interest,
may exercise the Option on behalf of the spouse of the Employee or such spouse's
successors in interest. More particularly, but without limiting the generality
of the foregoing, the Option may not be assigned, transferred (except as
provided above), pledged or hypothecated in any way, shall not be assignable by
operation of law and shall not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of the Option contrary to the provisions hereof shall be null and
void and without effect.
VI. EXERCISE OF OPTION. The Option shall be exercised as specified in Paragraph
6 of the Plan.
VII. WITHHOLDING TAX. Upon the exercise of the Option, the Company shall have
the right to require the Employee, and such Employee agrees, to pay the Company
the amount of any taxes which the Company may be required to withhold with
respect thereto and the Company shall not be obligated to issue certificates
representing the Shares to be acquired through the exercise of such Options if
the Employee fails to provide the Company with adequate assurance that the
Employee will pay such amounts to the Company as herein required. Such
withholding tax may be paid in accordance with the provisions of Paragraph 9 of
the Plan.
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VIII. HOLDING OF STOCK AFTER EXERCISE OF OPTION. By accepting the Option,
Employee represents and agrees, for the Employee and the Employee's permitted
transferees, that none of the Option Shares acquired upon exercise of the Option
will be acquired with a view to any sale, transfer or distribution of said
shares in violation of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations promulgated thereunder, and the person
entitled to exercise the same shall furnish evidence satisfactory to the Company
(including a written and signed representation) to that effect in form and
substance satisfactory to the Company, including an indemnification of the
Company in the event of any violation of the Securities Act by such person.
A. Employee acknowledges that in the event of the exercise of this
Option, unless the Option Shares received upon such exercise shall have
been registered under an effective registration statement under the
Securities Act, such shares will constitute "restricted securities," as
defined in Rule 144 promulgated under such Act, and agrees that such shares
(a) may not be sold except in compliance with the applicable provisions of
such Act and the rules and regulations promulgated thereunder, and (b) have
been acquired for investment purposes, and not with a view to distribution.
The Company may issue stop-transfer restrictions to its transfer agent with
respect to the Option Shares. The certificate or certificate representing
the Option Shares may in the discretion of the Committee bear the following
legend:
1. "No sale, offer to sell or transfer of the shares represented by
this certificate shall be made unless a registration statement under the
Securities Act of 1933, as amended, with respect to such shares is then in
effect or an exemption from the registration requirements of such Act is then in
effect applicable to such shares."
IX. NOTICES. Any notice required or permitted under this Option Agreement
shall be deemed given when delivered personally, or when deposited in a United
States Post Office as registered mail, postage prepaid, addressed, as
appropriate, either to the Employee at his or her address set forth below or
such other address as he or she may designate in writing to the Company, or to
Trimark Holdings, Inc., 0000 00xx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Secretary or such other address(es) as the Company may designate in
writing to the Employee.
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X. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Company to enforce at
any time any provision of this Option Agreement shall in no way be construed to
be a waiver of such provision or of any other provision hereof.
XI. GOVERNING LAW. The Option Agreement shall be governed by and construed
according to the laws of the State of Delaware.
XII. ADJUSTMENTS UPON CERTAIN CHANGES. In the event of a transaction specified
in Paragraph 15.1 of the Plan, the Board of Directors or the Committee shall, in
order to prevent the dilution or enlargement of rights under this Option
Agreement, make such adjustments in the number and type of Option Shares subject
to the Option and the Option Price as may be determined to be appropriate and
equitable. Adjustments made by the Board of Directors or Committee shall be
final, binding and conclusive. No fractional shares of stock will be issued on
any such adjustment.
XIII. TERMINATION. Upon the dissolution or liquidation of the Company, or upon
a reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon the sale of substantially all the property or more than eighty percent
of the then outstanding stock of the Company to another corporation, the Option
granted hereunder shall terminate.
XIV. PROVISIONS OF THE PLAN. The Option provided for herein is granted pursuant
to the Plan, and said Option and this Option Agreement are in all respects
governed by the Plan and subject to all of the terms and provisions thereof,
whether such terms and provisions are incorporated in this Option Agreement
solely by reference or are expressly cited herein. A copy of the Plan has been
furnished to the Employee, and the Employee hereby acknowledges receipt thereof.
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IN WITNESS WHEREOF, the Company has executed this Option Agreement in
duplicate on the day and year first above written.
TRIMARK HOLDINGS, INC.
BY:
Title
The undersigned hereby accepts, and agrees to, all terms and provisions of the
foregoing Option Agreement.
_____________________________
Xxx Xxxxx
_____________________________
_____________________________
_____________________________
[Address]
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