NON-STATUTORY STOCK OPTION AGREEMENT UNDER THE OF BUILDING MATERIALS HOLDING CORPORATION
Exhibit
10.23.1
UNDER
THE
2000
STOCK INCENTIVE PLAN
OF
This
Non-Statutory Stock Option Agreement (the "Agreement") is made and entered
into
as of the Date of Grant indicated in the attached Notice of Grant of Stock
Options (the "Grant Notice") by and between Building Materials Holding
Corporation, a Delaware corporation (the "Company"), and the person named as
Optionee.
RECITALS
WHEREAS,
Optionee is an employee, officer or consultant of the Company and/or one or
more
of its parents or subsidiaries; and
WHEREAS,
pursuant to the Company's 2000 Stock Incentive Plan (the "Plan"), the committee
of the Board of Directors of the Company administering the Plan (the
"Committee") or the Board of Directors (the “Board”) has approved the grant to
Optionee of an option to purchase shares of the common stock of the Company
(the
"Common Stock"), on the terms and conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals and the covenants set
forth herein, the parties hereto hereby agree as follows:
1. Grant
of Option; Certain Terms and Conditions.
The
Company hereby grants to Optionee, and Optionee hereby accepts, as of the Date
of Grant, an option to purchase the number of shares of Common Stock indicated
in the Grant Notice (the "Option Shares") at the Exercise Price per share
indicated in the Grant Notice, which option shall expire at 5:00 o'clock
p.m., California time on the Expiration Date indicated in the Grant Notice
and
shall be subject to all of the terms and conditions set forth in this Agreement
(the "Option"). The vesting of the Option Shares shall occur as set forth in
the
Grant Notice. This Option is not intended to qualify as an incentive stock
option under Section 422 of the Internal Revenue Code (the
"Code").
2. Acceleration
and Termination of Option.
(a) Termination
of Employment or Association.
(i) Death
or Permanent Disability.
If
Optionee shall cease to be an employee of the Company and/or any of its parents
or subsidiaries ("Employment") or cease to be a consultant of the Company and/or
any of its parents or subsidiaries ("Association") (in either case, a
"Termination") by reason of the death or permanent disability of Optionee,
then
(A) the portion of this Option that has not vested on or prior to the date
of such Termination of Employment or Association shall terminate on such date
and (B) the remaining vested portion of this Option shall terminate upon
the earlier of the Expiration Date or the date which is twelve (12) months
after the date of such Termination of Employment or Association. Optionee shall
not be deemed to have a permanent disability until proof of the existence
thereof shall have been furnished to the Committee or Board in such form and
manner, and at such times, as the Committee or Board may require. Any
determination by the Committee or Board that Optionee does or does not have
a
permanent disability shall be final and binding upon the Company and the
Optionee.
(ii) Retirement
After Age 65.
If
Optionee's Employment is Terminated by reason of Optionee's retirement in
accordance with the Company's then-current retirement policy (or the
then-current retirement policy of any of the Company's parents or subsidiaries,
if applicable) after age 65 ("Retirement"), then (A) the portion of
the Option that has not vested on or prior to the date of such Retirement shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate upon the earlier of the Expiration Date or the date which is
three (3) years after the date of such Retirement. Employees retiring at
age 60 or above with at least 15 years of service will vest 50 percent of their
unvested options. An additional five percent will be added for each year of
service beyond 15 years, with full vesting after 25 years of service, provided
retirement is on or after age 60. Services includes the Company and predecessor
company service.
(iii) Termination
for Cause.
If
Optionee's Employment or Association is Terminated for Cause (as defined in
the
Plan), then this Option shall terminate upon the date of such Termination of
Employment or Association and shall cease to be exercisable.
(iv) Other
Termination.
If
Optionee's Employment or Association is Terminated for no reason, or for any
reason other than Retirement, death or permanent disability, or for Cause,
then
(A) the portion of this Option that has not vested on or prior to the date
of such Termination of Employment or Association shall terminate on such date
and (B) the remaining vested portion of this Option shall terminate upon
the earlier of the Expiration Date or the date which is three (3) months
after the date of such Termination of Employment or Association.
(b) Events
Causing Acceleration of Option.
The
Committee or Board, in its sole discretion, may accelerate the exercisability
of
this Option at any time and for any reason. In the event of a Change in Control
of the Company, this Option shall become immediately exercisable in full. A
Change in Control shall be deemed to have occurred if: (i) there shall be
consummated (x) any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which shares
of
the Company's Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the transaction or (y) any sale, lease, exchange or other transfer (in
one
transaction or a series of related transactions) of all or substantially all
the
assets of the Company; or (ii) the stockholders of the Company approve a plan
or
proposal for the liquidation or dissolution of the Company; or (iii) any
'person' (as defined in Section 13(d) or 14(d) of the Securities Exchange Act
of
1934, as amended (the "Exchange Act") shall become the 'beneficial owner' (as
defined in Rule 13d-3 under the Exchange Act) directly or indirectly or fifty
percent (50%) or more of the Company's outstanding Common Stock or (iv) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors shall cease for any reason
to
constitute a majority thereof, unless the election or the nomination for
election by the Company's stockholders, of each new director was approved by
a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. Notwithstanding the above, a Change
of
Control shall not be deemed to have occurred in connection with a transaction
resulting in a merger, consolidation, sale of assets or sale of securities
if
such transaction has been initiated (in contrast to an action in response to
or
resulting from receipt of an offer or its equivalent from a third party) at
the
direction of the Board of Directors acting with the approval of a majority
of
the independent directors.
(c) Other
Events Causing Acceleration and Termination of Option.
In the
event of (a) a dissolution or liquidation of the Company, or (b) a
merger or consolidation in which the Company is not the surviving corporation,
the Company shall give to the Optionee, at the time of adoption of the plan
for
liquidation, dissolution, merger or consolidation, either: a reasonable time
thereafter within which to exercise this Option, prior to the effectiveness
of
such liquidation, dissolution, merger or consolidation, at the end of which
time
this Option shall terminate; or the right to exercise this Option as to an
equivalent number of shares of stock of the corporation succeeding the Company
or acquiring its business by reason of such liquidation, dissolution, merger
or
consolidation.
3. Adjustments.
In the
event that the outstanding securities of the class then subject to this Option
are increased, decreased or exchanged for or converted into cash, property
and/or a different number of kind of securities, or cash, property and/or
securities are distributed in respect of such outstanding securities, in either
case as a result of a reorganization, merger, consolidation, recapitalization,
reclassification, dividend (other than a regular, quarterly cash dividend)
or
other distribution, stock split, reverse stock split or the like, or in the
event that substantially all of the property and assets of the Company are
sold,
then, unless such event shall cause this Option to terminate pursuant to
Section 2(c) hereof, the Committee or Board shall make appropriate and
proportionate adjustments in the number and type of shares or other securities
or cash or other property that may thereafter be acquired upon the exercise
of
this Option; provided, however, that any such adjustments in this Option shall
be made without changing the aggregate Exercise Price of the then unexercised
portion of this Option. In the event any fractional shares of stock would result
on account of any such adjustment, then the number of shares shall be rounded
upward to the nearest whole share.
4. Manner
of Exercise.
This
Option shall be exercisable during Optionee's lifetime only by Optionee, and
after Optionee's death only by the person or entity entitled to do so under
Optionee's last will and testament or applicable to intestate law. This Option
may be exercised with respect to all or any part of the Option Shares then
subject to such exercise as follows:
(a) By
giving
the Company written notice of such exercise specifying the number of the Option
Shares as to which the Option is so exercised and accompanied by an amount
equal
to the aggregate Exercise Price of such shares, in the form of any one or
combination of (i) cash, a certified check or postal or express money order
payable to the order of the Company in lawful money of the United States,
(ii) shares of Common Stock previously acquired by Optionee, in
satisfaction of all or a portion of such aggregate Exercise Price; and any
Common Stock so delivered shall be valued at its Fair Market Value (as defined
in the Plan) on the date of exercise, or (iii) delivery of a properly
executed exercise notice together with such other documentation as the Committee
or Board and the broker, if applicable, shall require to effect an exercise
of
the Option and delivery to the Company of the sale proceeds required to pay
the
aggregate Exercise Price.
(b) If
required by the Company, by giving satisfactory assurance in writing, signed
by
Optionee or his or her legal representative, that such shares are not being
purchased with a view to the distribution thereof; provided, however, that
such
assurance shall be deemed inapplicable to (1) any sale of such shares by
the Optionee subject to a registration statement covering such sale, which
has
heretofore been (or may hereafter be) filed and become effective under the
Securities Act of 1933, as amended (the "Securities Act"), and with respect
to
which the registration statement is current and no stop order suspending the
effectiveness thereof has been issued, and (2) any other sale of such
shares with respect to which, in the opinion of counsel for the Company, such
assurance is not required to be given in order to comply with the provisions
of
the Securities Act.
As
soon
as practicable after receipt of such written notice from Optionee, the Company
shall, without transfer or issue tax or other incidental expenses to Optionee,
deliver to Optionee at the office of the Company, or such other place as may
be
mutually acceptable to the Company and Optionee, a certificate or certificates
for such shares, which certificate or certificates may bear such legend or
legends with respect to restrictions on transfer as counsel for the Company
deems to be required by applicable provisions of law and this Agreement;
provided, however, that nothing herein shall be deemed to impose upon the
Company any obligation to deliver any shares of Common Stock to the Optionee
if,
in the opinion of counsel, for the Company, doing so would violate any provision
of: (i) the Securities Act; (ii) the Exchange Act; (iii) any
applicable listing requirements of any national securities exchange;
(iv) any state securities regulation or "Blue Sky" laws; or
(v) requirements under any other law or regulation applicable to the
issuance or transfer of such shares. In no event shall the Company be required
to take any affirmative action to comply with any of such laws, regulations
or
requirements, nor shall the Company be liable for any failure to deliver shares
of Common Stock because such shares have not been registered or because a
registration statement with respect thereto is not current or because such
delivery would otherwise be in violation of any applicable law or
regulation.
5. Payment
of Withholding Taxes.
By
accepting this Option, the Optionee, both personally and on behalf of any person
to whom Optionee, both personally and on behalf of any person to whom Optionee's
rights under this Option shall pass by will or the laws of descent and
distribution, agrees that, if the Company so requires, whenever Option Shares
are to be issued by reason of the exercise of this Option, the Optionee or
such
other person who is to receive such stock will remit to the Company, prior
to
the delivery of any certificate or certificates for such shares, all or any
part
of an amount determined by the Company in its discretion to be sufficient to
satisfy federal, state and local withholding tax requirements which the Company,
or its counsel, determine may be payable with respect to such exercise. Such
withholding may be paid in cash, by check payable to the Company, or by delivery
of shares of the Company's Common Stock, valued at the Fair Market Value of
such
Common Stock on the date of delivery or by surrender of a portion of this
Option.
6. Notices.
All
notices and other communications required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be deemed given if delivered
personally or five (5) days after mailing by certified or registered mail,
postage prepaid, return receipt requested, to the Company at Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, or
to
Optionee at the address set forth in the Grant Notice, or at such other
addresses as they may designate by written notice in the aforesaid
manner.
7. Restrictions
on Transfer.
Under
the Plan, options are subject to limited transferability by the original option
holder subject to the approval of the Committee or Board of
Directors.
8. The
Plan.
This
Option is granted pursuant to the Plan, as in effect on the Date of Grant,
and
is subject to all the terms and conditions of the Plan, as the same may be
amended from time to time; provided, however, that no such amendment shall
deprive Optionee, without his or her consent, of this Option or of any of
Optionee's rights under this Agreement. The interpretation and construction
by
the Committee or Board of the Plan, this Agreement, this Option and such rules
and regulations as may be adopted by the Committee or Board for the purpose
of
administering the Plan shall be final and binding upon Optionee. Until this
Option shall expire, terminate or be exercised in full, the Company shall,
upon
written request therefor, send a copy of the Plan, in its then-current form,
to
Optionee or any other person or entity then entitled to exercise this Option.
Each capitalized term used herein but not defined herein shall have the meaning
ascribed thereto in the Plan.
9. Stockholder
Rights.
No
person or entity shall be entitled to vote, receive dividends or be deemed
for
any purpose the holder of any Option Shares until this Option shall have been
duly exercised to purchase such Option Shares in accordance with the provisions
of this Agreement.
10. Employment
or Association Rights; Other Plans.
No
provision of this Agreement or of this Option granted hereunder shall
(a) confer upon Optionee any right to continue in the employ of or to
associate with the Company or any of its parents or subsidiaries,
(b) affect the right of the Company and each of its parents and
subsidiaries to terminate the Employment or Association of Optionee, with or
without cause, or (c) confer upon Optionee any right to participate in any
employee welfare or benefit plan or other program of the Company or any of
its
parents or subsidiaries other than the Plan. Nothing in this Agreement is
intended to be a substitute for, or shall preclude or limit the establishment
or
continuation of, any other plan, practice or arrangement for the payment of
compensation or benefits to Optionees generally, which the Company or its
parents or subsidiaries now has or may hereafter lawfully put into effect,
including, without limitation, any retirement, pension, insurance, stock
purchase, incentive compensation or bonus plan. Optionee hereby acknowledges
and
agrees that the Company and each of its parents and subsidiaries may terminate
the Employment or Association of Optionee at any time and for any reason, or
for
no reason, unless Optionee and the Company or such parent or subsidiary are
parties to a written employment or other agreement that expressly provides
otherwise.
11. Binding
Effect of Agreement.
This
Agreement shall be binding upon and inure to the benefit of any successors
and
assigns of the Company or its parents or subsidiaries, and upon Optionee and
Optionee's heirs, executors, administrators, personal representatives, permitted
assignees and successors in interest.
12. Governing
Law.
This
Agreement and the Option granted hereunder shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, excluding
the
choice of law provisions thereof.
