Xxxxx Corporation
Stock Option Agreement
THIS AGREEMENT is made and entered into as of the 26th day of February, 1993 by
and between XXXXX CORPORATION, a Delaware corporation (the "Company"), and S.
XXXXX XXXXXXXX (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to grant to Employee as of this 26th day of
February, 1993 (the "date of the grant") an option to purchase all or any part
of 17,500 shares of Class A Common Preference Stock of the Company upon the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom, the parties hereto agree
as follows:
1. Grant of Option. The Company grants to the Employee the right and option
---------------
to purchase, on the terms and conditions hereinafter set forth, all or any part
of an aggregate of 17,500 shares of the Series A Common Preference Stock of the
Company at the price of $10.50 per share, exercisable from time to time and
subject to provisions of this Agreement prior to the close of business of
February 25, 2003. The option granted hereby is intended to be a nonqualified
stock option, and is not intended to be an incentive stock option within the
meaning of Section 422A of the Internal Revenue Code of 1954, as amended (the
"Code").
2. Exercisability of Option. Except as otherwise provided in the Agreement,
------------------------
this option may be exercised from time to time and for the number of shares as
follows: 4,375 shares from February 26, 1993 through February 25, 1994, 8,750
shares from
Stock Option Agreement
Page 2
February 26, 1994 through February 25, 1995, 13,125 shares from February 26,
1995 through February 25, 1996 and 17,500 share from February 26, 1996 through
February 25, 2003.
3. Method of Exercise of Option and Payment of Purchase Price. This option
----------------------------------------------------------
shall be exercisable by the delivery to the Secretary of the Company of a
written notice stating the number of shares to be purchased pursuant to the
option and accompanied by payment of the purchase price in full in cash or by
check made payable to the order of the Company. In addition, the Employee (or
the person or persons exercising the option if the Employee is deceased) shall
furnish any written statements required pursuant to Section 9 below. Fractional
share interests shall be disregarded except that they may be accumulated.
4. Effect of Termination of Relationship. This option and all other rights
-------------------------------------
hereunder, to the extent such option or rights shall not have been exercised,
shall terminate and become null and void at such time as the Employee ceases to
be an Employee of the Company, except that:
a) In the event of the Employee terminates or is terminated as a
result of permanent disability, he may at any time within ninety
(90) days after such termination exercise this option to the extent
this option was exercisable at the date of such termination; and
b) In the event of the death of the Employee while in the employ of
the Company, or within ninety (90) days after termination as a
result of permanent disability as described in clause a) of this
Section 4, then this option, to the extent that the Employee was
entitled to exercise this option on the date of his/her death (or
earlier termination), may be exercised within ninety (90) days
Stock Option Agreement
Page 3
after such death by the person or persons to whom the Employee's
rights under this option shall pass by will or by the applicable
laws of descent shall pass by will or by the applicable laws of
descent provided, however, that in no event may this option be
exercised by anyone under this Section or otherwise, after the
expiration date provided in Section 1 hereof.
5. Non-Assignability of Option. During the Employee's lifetime, this option
---------------------------
and any other rights hereunder may be exercised only by the Employee. This
option and such rights shall not be offered, sold, transferred, assigned,
pledged, hypothecated or otherwise disposed of in any way (whether by operation
of law or otherwise) except by will or the laws of descent and distribution, and
shall not be subject to execution, attachment or similar process.
6. Adjustments and Other Rights. The rights of the Employee hereunder are
----------------------------
subject to equitable adjustments and modifications in certain circumstances and
upon occurrence of certain events including a reorganization, merger,
combination, recapitalization, reclassification, stock split, reverse stock
split, stock dividend, stock consolidation and certain stock purchases or
acquisitions, as set forth in or pursuant to Sections 3.1 and 3.3 of the
Company's 1984 Stock Option Plan (the "Plan").
7. Limitation of Employee's Rights. Neither the Employee nor any other
-------------------------------
person entitled to exercise this option shall have any of the rights or
privileges of a Shareholder of the Company in respect of any shares issuable
upon exercise of this option unless and until a certificate representing such
shares shall have been issued in the name of the Employee or such person.
Stock Option Agreement
Page 4
8. Effect of Agreement. This Agreement shall be assumed by, binding upon and
-------------------
inure to the benefit of any successor corporation to the Company, as provided in
Section 3.2 of the Plan.
9. Representations of the Employee. The Employee represents, agrees and
-------------------------------
certifies that:
a) If the Employee exercises this option in whole or in part at a time
when there is not in effect under the Securities Act of 1933, as
amended (the "Act"), a registration statement relating to the shares
issuable upon exercise hereof and available for delivery to him a
prospectus meeting the requirements of Section 10 a) 3) of the Act,
the Employee will acquire the shares issuable upon such exercise for
the purpose of investment and not with a view to their resale or
distribution and upon each such exercise of this option the Employee
will furnish to the Company a written statement to such effect,
satisfactory in form and substance to the Company and its counsel;
b) If and when the Employee proposes to offer to sell shares which are
issued to the Employee upon exercise of this option at a time when
there is not in effect under the Act a registration statement
relating to the resale of such shares and available for delivery a
prospectus meeting the requirements of Section 10 a) 3) of the Act,
or if the Employee is then an officer, director or holder of 10% or
more of the stock of the Company, the Employee will notify the
Company prior to any such offering or sale and will abide by the
opinion of counsel of the Company as to whether and under what
conditions and circumstances, if any, he may offer and sell such
shares; and
Stock Option Agreement
Page 5
c) No shares may be acquired hereunder pursuant to exercise of the option
granted hereby unless and until any then applicable requirements of
the Securities and Exchange Commission, the California Department of
Corporations, other regulatory agencies, including any other state
securities law commissioners, having jurisdiction over the Company or
such issuance, and any exchanges upon which Common Stock of the
Company may be listed shall have been fully satisfied.
The Employee understands that the certificate or certificates representing the
shares acquired pursuant to this option may bear a legend referring to the
foregoing matters and any limitations under the Act and state securities laws
with respect to the transfer of such shares, and the Company may impose stop
transfer instructions to implement such limitations, if applicable. Any person
or persons entitled to exercise this option under the provisions of Sections 4
or 5 above shall be bound by and obligated under the provisions of this Section
9 to the same extent as if the Employee.
10. Withholding. The provisions of Section 3.6 of the Plan shall govern any
-----------
withholding that the Company is required to make with respect to the exercise of
this option.
11. Notices. Any notice to be given under the terms of this Agreement or
-------
pursuant to the Plan shall be in writing and addressed to the Secretary of the
Company at its principal office and to the Employee at the address given beneath
the Employee's signature hereto, or at such other address as either party may
hereinafter designate in writing to the other.
12. Laws Applicable to Construction. The interpretation, performance and
-------------------------------
enforcement of this Agreement and all rights and obligations of the parties
hereunder shall be governed by the laws of the State of California.
Stock Option Agreement
Page 6
13. 1984 Stock Option Plan. Although this Option has not been issued pursuant
----------------------
to and, accordingly, is not subject to the Plan, the Parties have for
convenience incorporated by reference certain provisions of the Plan into this
agreement with the intent that such incorporated provisions be applicable to the
same extent as though set out in the full agreement, but with references in the
Plan to Common Stock being interpreted as references to Series A Common
Preference Stock. The Employee acknowledges receipt of a copy of the Plan, which
is made a part hereof by this reference.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
behalf by a duly authorized officer and the Employee has hereunto set his hand.
XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx, Chairman
EMPLOYEE
/s/ S. Xxxxx Xxxxxxxx
---------------------------------
(Signature)
S. Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xx Xxxxxx Xxxxxxxxxx, XX 00000
Executed: March 8, 1997
