GOLDEN STATE ACQUISITION CORP.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") is entered
into as of _____________, 199__ by and between Golden State Acquisition Corp., a
Delaware corporation (the "Company"), and _____________ ("Optionee") pursuant to
the Golden State Acquisition Corp., 1996 Stock Option Plan dated December 3,
1996 (the "Plan"). All capitalized terms not otherwise defined herein shall
have the meanings set forth in the Plan.
R E C I T A L S:
A. Optionee is an officer or employee of the Company or of a direct
or indirect subsidiary of the Company (individually, a "Subsidiary" and
collectively, the "Subsidiaries").
B. The Company desires to grant Optionee the right to purchase
shares of the Company's Class B Common Stock, par value $.01 per share (the
"Class B Common Stock"), pursuant to the terms and conditions of this Agreement
and the Plan.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the covenants hereinafter set
forth, the parties agree as follows:
1. OPTION; NUMBER OF SHARES. The Company hereby grants to Optionee
the right (the "Option") to purchase up to a maximum of _______ shares (the
"Shares") of Common Stock at a price of $________ per share (the "Option Price")
to be paid in accordance with Section 6 hereof. This Option and the right to
purchase all or any portion of the Shares are subject to the terms and
conditions stated in this Agreement and in the Plan. It is intended that the
Option will qualify for treatment as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (the "Code").
2. VESTING CRITERIA. The Option shall vest in equal annual
installments with respect to 25% of the Shares on each of the first, second,
third and fourth anniversaries of this Option. Such vesting installments shall
be cumulative, such that this Option may be exercised as to any or all of the
Shares covered by an installment at any time or times after that installment
becomes exercisable and until this Option expires or terminates.
3. TERM OF AGREEMENT. This Option, and Optionee's right to exercise
this Option, shall terminate when the first of the following occurs:
(a) termination pursuant to Sections 11, 15 or 16 of the Plan; (b) the
expiration of ten (10) years from the date hereof; or (c) 90 days after the
date of termination of Optionee's employment or other relationship with the
Company and the Subsidiaries, unless such termination results from Optionee's
death or disability (within the meaning of Section 22(e)(3) of the Code) or
Optionee dies within 90 days after the date of termination of Optionee's
employment or consulting relationship with the Company and the Subsidiaries, in
which case this Agreement and the Option shall terminate 180 days after the date
of termination of Optionee's employment or other relationship with the Company
and the Subsidiaries.
4. TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP. The termination
for any reason of Optionee's employment or other relationship with the Company
and the Subsidiaries shall not accelerate the vesting of the Option or affect
the number of Shares with respect to which the Option may be exercised, and this
Option may only be exercised with respect to that number of Shares which could
have been purchased under the Option had the Option been exercised by Optionee
on the date of such termination.
5. DEATH OF OPTIONEE; NO ASSIGNMENT. The rights of Optionee under
this Agreement may not be assigned or transferred except by will, by the laws of
descent or distribution and may be exercised during the lifetime of Optionee
only by such Optionee, provided that in the event of disability (within the
meaning of Section 22(e)(3) of the Code) of Optionee, a designee of Optionee (or
the Optionee's legal representative if Optionee has not designated anyone) may
exercise the Option on behalf of Optionee (provided the Option would have been
exercisable by Optionee) until the right to exercise the Option expires pursuant
to Section 3 hereof. Any attempt to sell, pledge, assign, hypothecate, transfer
or otherwise dispose of the Option in contravention of this Agreement or the
Plan shall be void and shall have no effect. If Optionee should die while
Optionee is engaged in an employment or other relationship with the Company
and/or any Subsidiary, and provided Optionee's rights hereunder shall have
vested, in whole or in part, pursuant to Section 2 hereof, Optionee's designee,
legal representative, or legatee, the successor trustee of Optionee's inter
vivos trust or the person who acquired the right to exercise the Option by
reason of the death of Optionee (individually, a "Successor") shall succeed to
Optionee's rights under this Agreement. After the death of Optionee, only a
Successor may exercise the Option, provided that any Shares received by such
Successor following such exercise shall be subject to Section 13.
6. EXERCISE OF OPTION. On or after the vesting of the Option in
accordance with Section 2 hereof and until termination of the Option in
accordance with Section 3 hereof, the Option may be exercised by Optionee (or
such other person specified in Section 5 hereof) to the extent exercisable as
determined under Section 2 hereof, upon delivery of the following to the Company
at its principal executive offices:
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(a) a written notice of exercise which identifies this Agreement
and states the number of Shares (which may not be less than 100) or all of the
Shares (if less than 100 Shares then remain covered by the Option) then being
purchased;
(b) a check, cash or any combination thereof in the amount of
the aggregate Option Price (or payment of the aggregate Option Price in such
other form of lawful consideration as the Committee may approve from time to
time under the provisions of Section 8 of the Plan);
(c) a check or cash in the amount reasonably requested by the
Company to satisfy the Company's withholding obligations under federal, state or
other applicable tax laws with respect to the taxable income, if any, recognized
by Optionee in connection with the exercise, in whole or in part, of the Option
(unless the Company and Optionee shall have made other arrangements for
deductions or withholding from Optionee's wages, bonus or other income paid to
Optionee by the Company or any Subsidiary, provided such arrangements satisfy
the requirements of applicable tax laws); and
(d) a written representation and undertaking, if requested by
the Company pursuant to Section 8(b) hereof, in such form and substance as the
Company may require, setting forth the investment intent of Optionee, or a
Successor, as the case may be, and such other agreements, representations and
undertakings as described in the Plan.
7. REPRESENTATIONS AND WARRANTIES OF OPTIONEE.
(a) Optionee represents and warrants that the Option is being
acquired by Optionee for Optionee's personal account, for investment purposes
only, and not with a view to the distribution, resale or other disposition
thereof.
(b) Optionee acknowledges that the Company may issue Shares upon
the exercise of the Option without registering such securities under the Act on
the basis of certain exemptions from such registration requirement.
Accordingly, Optionee agrees that Optionee's exercise of the Option may be
expressly conditioned upon Optionee's delivery to the Company of such
representations and undertakings as the Company may reasonably require in order
to secure the availability of such exemptions, including a representation that
Optionee is acquiring the Shares for investment and not with a present intention
of selling or otherwise disposing of such Shares.
(c) Optionee acknowledges receipt of this Agreement granting the
Option, and the Plan, and understands that all rights and liabilities connected
with the Option are set forth herein and in the Plan.
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8. NO RIGHTS AS A STOCKHOLDER. Optionee shall have no rights as a
stockholder of any shares of Common Stock covered by the Option until the date
(the "Exercise Date") an entry evidencing such ownership is made in the stock
transfer books of the Company. Except as may be provided under Section 11 of
the Plan, the Company will make no adjustment for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the Exercise Date.
9. LIMITATION OF COMPANY'S LIABILITY FOR NONISSUANCE. Inability of
the Company to obtain, from any regulatory body having jurisdiction, authority
reasonably deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any shares of Common Stock hereunder and under the Plan
shall relieve the Company of any liability in respect of the nonissuance or sale
of such shares as to which such requisite authority shall not have been
obtained.
10. CONFIDENTIALITY. Optionee agrees to hold in the strictest of
confidence all material information, including without limitation all financial
information, provided to Optionee by the Company, and further agrees not to use
such information for any purpose adverse to the Company, not to duplicate such
information or to deliver such information to any other person.
11. THIS AGREEMENT SUBJECT TO PLAN. This Agreement is made under the
provisions of the Plan and shall be interpreted in a manner consistent with it.
To the extent that any provision in this Agreement is inconsistent with the
Plan, the provisions of the Plan shall control. A copy of the Plan is available
to Optionee at the Company's principal executive offices upon request and
without charge. The good faith interpretation of the Committee of any provision
of the Plan, the Option or this Agreement, and any determination with respect
thereto or hereto by the Committee, shall be final, conclusive and binding on
all parties.
12. RESTRICTIVE LEGENDS. Optionee hereby acknowledges that federal
securities laws and the securities laws of the state in which Optionee resides
may require the placement of certain restrictive legends upon the Shares issued
upon exercise of the Option, and Optionee hereby consents to the placing of any
such legends upon certificates evidencing the Shares as the Company, or its
counsel, may reasonably deem necessary; provided, however, that any such legend
or legends shall be removed when no longer applicable.
13. REPURCHASE BY THE COMPANY.
(a) REPURCHASE OPTION. If Optionee's employment with the
Company or any Subsidiary terminates for any reason (including, without
limitation, on the death, disability, retirement, voluntary resignation or
dismissal by the Company, with or without cause), the Company or one or more
designated assignees (each, an "Assignee") shall have the option (the
"Repurchase Option") to purchase from Optionee all or any portion of the Shares
then held by
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Optionee for a period of 180 days after the date of such termination (the
"Termination Date"). The purchase price for any such Shares to be purchased
pursuant to the Repurchase Option shall equal the greater of (i) the Option
Price or (ii) the fair market value of the Shares, as determined in good faith
by the Company's Board of Directors.
(b) ADJUSTMENTS OF OPTION PRICE UNDER REPURCHASE OPTION. The
purchase price for any Shares to be purchased pursuant to the Repurchase Option
shall be increased or decreased, as may be appropriate, to reflect any
subdivision or combination of the Shares or any dividend or distribution with
respect to the Shares which has been paid in additional shares of the capital
stock of the Company.
(c) EXERCISE OF REPURCHASE OPTION. The Repurchase Option shall
be exercised by the Company or any Assignee by delivery to Optionee, within the
180-day period specified in SECTION 13(B) above, of (i) a written notice
specifying the number of Shares to be purchased and (ii) a check in the amount
of the purchase price, calculated as provided in this SECTION 13, for all Shares
to be purchased.
(d) TERMINATION OF REPURCHASE OPTION. The Repurchase Option
shall terminate and have no further force or effect on and after the
effectiveness of the Company's first registration of shares of its equity
securities pursuant to the Securities Act of 1933, as amended.
14. NOTICES. All notices, requests and other communications
hereunder shall be in writing and, if given by telecopy, shall be deemed to have
been validly delivered 12 hours after confirmation of transmission to the fax
numbers set forth below, if sent during usual business hours; if given by
personal delivery, shall be deemed to have been validly served, given or
delivered upon actual delivery; and, if mailed, shall be deemed to have been
validly served, given or delivered three business days after deposit in the
United States mails, as registered or certified mail, with proper postage
prepaid and addressed to the party or parties to be notified, at the following
addresses (or such other address(es) as a party may designate for itself by like
notice):
If to the Company:
Golden State Acquisition Corp.
00 Xxxx Xxx Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
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If to Optionee:
__________________________
__________________________
__________________________
Fax No.: ________________
15. NOT AN EMPLOYMENT OR OTHER AGREEMENT. Nothing contained in this
Agreement shall confer, intend to confer or imply any rights to an employment or
other relationship or rights to a continued employment or other relationship
with the Company and/or any Subsidiary in favor of Optionee or limit the ability
of the Company and/or any Subsidiary to terminate, with or without cause, in its
sole and absolute discretion, the employment or other relationship with
Optionee, subject to the terms of any written employment or other agreement to
which Optionee is a party.
16. NOTICE OF DISQUALIFYING DISPOSITION OF SHARES. If the Optionee
sells or otherwise disposes of any of the Shares acquired pursuant to exercise
of this Option on or before the later of (a) the date two years after the date
of this Option, or (b) the date one year after the date of exercise pursuant to
which such Shares were acquired, the Optionee shall immediately notify the
Company in writing of such disposition. The Optionee agrees that the Optionee
may be subject to income tax withholding by the Company on the compensation
income recognized by the Optionee by reason of such disposition.
17. GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the State of Delaware without regard to the conflict of
law provisions thereof.
18. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and both of which together shall be
deemed one Agreement.
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IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the date first above written.
THE COMPANY:
GOLDEN STATE ACQUISITION CORP.
a Delaware corporation
By:
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Xxxxxxx X. Xxxxx
Chairman of the Board
OPTIONEE:
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