EXHIBIT 10.9
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO (AND QUALIFICATION
THEREOF UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, AS AMENDED
(THE "LAW")), OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION AND QUALIFICATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE LAW.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK AGREEMENT (the "Agreement") made and entered
into as of the______ day of_____, ____, by and between Dover Investments
Corporation, a Delaware corporation (the "Company"), and_______________, an
employee of the Company (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the 1995 Stock Option Plan (the
"Plan"), providing for the granting to its employees of stock options relating
to shares of its Class A Common Stock, $.01 par value per share (the "Class A
Common Stock"), and its Class B Common Stock, $.01 par value per share
(the "Class B Common Stock"); and
WHEREAS, the Plan provides for the grant of certain options which
are intended to be incentive stock options ("incentive stock options") within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"); and
WHEREAS, the Employee is a key employee who is in a position to
make an important contribution to the long-term performance of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Effective___________, ____, pursuant to the action of the
Company's Board of Directors, the Company hereby grants to the Employee an
incentive stock option to purchase_______ shares of the Class ___ Common
Stock at the price set forth in Paragraph 2 hereof, on the terms and
conditions hereinafter stated. In consideration of the grant of this option and
the other rights which are being concurrently granted to him or her, the
Employee hereby agrees to continue in the employment of the Company for a
period of at least one year from the date of grant of this option.
2. The purchase price per share is __________ dollars ($____)
(which is hereby agreed to be 100% or more of the fair market value of such
shares at the date of grant, or if the employee holds shares with more than
10% of the Company's total voting power, 110% or more of the fair market
value of such shares at the date of grant).
3. The number of shares of the class of common stock covered
hereby and the price per share thereof shall be proportionately adjusted for
any increase or decrease in the number of issued and outstanding shares of
the class of common stock resulting from a subdivision or consolidation of
shares or the payment of a stock dividend in excess of 2% or any other
increase or decrease in the number of issued and outstanding shares of the
class of common stock effected without receipt of consideration by the
Company.
If the Company shall be the continuing or surviving corporation in
any reorganization, consolidation or merger, each outstanding option shall
pertain to and apply to the securities, if any, to which a holder of the same
number of shares of Class A Common Stock and/or Class B Common Stock that are
subject to that option would have been entitled.
A "Change in Control" of the Company (as defined below) shall cause
each outstanding option to terminate, unless any agreement relating to a
Change in Control shall otherwise provide or unless such Change in Control is
an event described in clauses (a)(2) or (a)(3) of the following paragraph;
provided, however, that each optionee holding an outstanding option in the
event of a Change in Control shall have the right immediately prior to such a
Change in Control, regardless of whether such option will terminate, to
exercise his or her option in whole or in part without regard to
any limitations on exercisability and thereafter such option shall be
considered fully vested.
For the purposes hereof, a "Change in Control" shall be deemed to
have occurred when (a) there shall be consummated (1) any reorganization,
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation, or (2) any reorganization, consolidation
or merger of the Company in which the Company is the continuing or surviving
corporation and pursuant to which shares of the Company's Class A Common Stock
and Class B Common Stock would be converted into cash, securities or other
property, or (3) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially
all, of the assets of the Company, or (b) the stockholders of the Company
approve a plan or proposal for the liquidation or dissolution of the Company,
or (c) the Board of Directors of the Company or the Compensation Committee of
the Board of Directors (the "Committee") shall have been determined that
such a "Change in Control" otherwise has occurred.
To the extent that the foregoing adjustments in this Paragraph 3
relate to stock or securities of the Company, such adjustments shall be made
by the Committee, whose determination in this respect shall be final, binding
and conclusive.
The grant of this option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure or to merge or to consolidate
or to dissolve, liquidate or sell, or transfer all or any part of its business
assets.
4. Except as provided in Paragraph 3 above, this option may not
be exercised in whole or in part until twelve months has elapsed from the
date of this Agreement.
The number of shares subject to this option shall be exercisable in
accordance with the following schedule:
__________ shares exercisable on or after ____________, ______, plus
__________ shares exercisable on or after ____________, ______, plus
__________ shares exercisable on or after ____________, ______.
No partial exercise of this option will be permitted for less than
ten shares.
5. In the event of termination of the Employee's employment for
any reason other than his death or disability, this option shall immediately
terminate 30 days after the date of cessation of employment; provided, however,
that if such cessation of employment is with the consent of the Board of
Directors, expressed in the form of a resolution, or is pursuant to his or
her retirement under the provisions of any pension, profit sharing or other
retirement plan of the Company then in effect, this option may be exercised
(subject to the provisions of Paragraph 13 hereof) within three months
after the date he ceases to be an employee of the Company, but only to the
extent that it was exercisable on the date of such cessation of employment;
and, provided, further, that if such cessation of employment occurs after
a Change in Control, this option shall terminate 180 days after the date of
such cessation of employment.
6. This option shall be exercisable during the Employee's
lifetime only by him and shall be nontransferable by the Employee otherwise
than by will or the laws of descent and distribution.
7. In the event of Employee's ceasing to be employed by the
Company on account of permanent and total disability within the meaning of
Section 22(e)(3) of the Code, this option may be exercised (subject to the
provisions of paragraph 13 hereof) at any time within one year after
cessation of employment due to such disability, but only to the extent this
option was exercisable immediately prior to the disability.
8. In the event of the Employee's death while in the employ of
the Company, or during a three-month period following termination of
employment during which the Employee is permitted to exercise this option
pursuant to Paragraph 5 hereof, this option may be exercised (subject
to the provisions of Paragraph 13 hereof) at any time within one year after
the Employee's death by the Employee's to the extent it was exercisable
immediately prior to his or her death by the executors or administrators of
his or her estate or by any person or persons who shall have acquired this
option directly from him or her by will or the applicable law of descent and
distribution. Any such transferee exercising this option must furnish the
Company upon request of the Committee (a) written notice of his or her status
as transferee, (b) evidence satisfactory to the Company to establish the
validity of the transfer of this optionin compliance with any laws or
regulations pertaining to said transfer, and (c) written acceptance of the
terms and conditions of this option as prescribed in this Agreement.
9. This option may be exercised by the person then entitled to do
so as to any shares which may then be purchased by giving notice of exercise
to the Company, specifying the number of full shares to be purchased and
accompanied by full payment of the purchase price thereof and the amount of
any income tax the Company is required by law to withhold by reason of such
exercise. The purchase price shall be payable in legal tender of the United
States [or, in shares of the same class of common stock or in a combination
of legal tender of the United States and such shares]. For purposes of
computing the purchase price, shares surrendered will be valued at their fair
market value on the date of exercise.
10. Neither the Employee nor any person claiming under or through
him or her shall be or have any of the rights or privileges of a stockholder
of the Company in respect of any of the shares issuable upon the exercise of
the option, until the date of the receipt of payment by the Company and the
issuance of a stock certificate to him or her for such shares in accordance
with the terms hereof.
11. Any notice to be given to the Company under the terms of this
Agreement shall be addressed to Dover Investments Corporation, in care of its
Secretary, at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
or at such other address as the Company may hereafter designate in writing.
Any notice to be given to the Employee shall be addressed to the Employee at
the address set forth beneath his or her signature hereto, or at any such
other address as the Employee may hereafter designate in writing. Any such
notice shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope, addressed as aforesaid, registered and deposited,
postage and registry fee prepaid, in a post office or branch post office
regularly maintained by the United States Government.
12. Except as otherwise provided herein, this optionherein granted
and the rights and privileges conferred hereby shall not be transferred,
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to sale under execution, attachment
or similar process upon the rights and privileges conferred hereby. Upon any
attempt to transfer, assign, pledge or otherwise dispose of said option, or
of any right or privilege conferred hereby, contrary to the provisions hereof,
or upon any attempted sale under any execution, attachment or similar process
upon the rights and privileges conferred hereby, said option and the rights and
privileges conferred hereby shall immediately become null and void.
13. Notwithstanding any other provisions of this Agreement, this
option is not exercisable after the expiration of ten [five if the employee
is a more-than-10% shareholder] years from the date hereof.
14. Subject to the limitations on transferability contained herein,
this Agreement shall be binding upon and inure to the benefit of the heirs,
legal representatives, successors and assigns of the parties hereto.
15. The rights awarded hereby are subject to the requirement that,
if at any time the Committee shall determine, in its sole discretion, that
the listing, registration or qualification of the shares subject to such
rights upon any securities exchange or under any state or federal law, or the
consent or approval of any government regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such
rights or the issue of shares in connection therewith, such rights may not
be exercised or paid in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free
of any conditions not acceptable to the Committee.
16. By receipt of the option, by execution of this Agreement and
by exercise in whole or in part, the Employee represents to the Company that
the Employee understands that:
(a) both this optionand any shares purchased upon its exercise are
securities, the issuance by the Company of which requires compliance with
federal and state securities laws;
(b) these securities are made available to the Employee only on
the condition that he or she makes the representations contained in this
Paragraph 16 to the Company;
(c) the Employee has made a reasonable investigation of the affairs
of the Company sufficient to be well informed as to the rights and the value
of these securities;
(d) the Employee understands that the securities have not been
registered under the Securities Act of 1933, as amended (the "Act"), or
qualified under the California Corporate Securities Law of 1968, as amended
(the "Law"), in reliance upon one or more specific exemptions contained
in the Act and the Law, which may depend upon (i) the Employee's bona fide
investment intention in acquiring these securities; (ii) the Employee's
intention to hold these securities for his or her own benefit for an
indefinite period; (iii) the Employee having no present intention of selling
or transferring any part thereof (recognizing that this optionis not
transferable); and (iv) there being certain restrictions on transfer of the
shares subject to the option;
(e) The employee understands that the shares subject to the option,
in addition to other restrictions on transfer, must be held indefinitely
unless subsequently registered under the Act, or unless an exemption from
registration is available; that Rule 144, the usual exemption from
registration, is only available after the satisfaction of certain holding
periods and in the presence of a public market for the shares; that there is
no certainty that a public market for the shares will exist; and that
otherwise it will be necessary that the shares be sold pursuant to another
exemption from registration which may be difficult to satisfy; and
(f) The Employee understands that the certificate representing the
shares will bear a legend prohibiting their transfer in the absence of their
registration and qualification or the opinion of counsel for the Company that
registration and qualification is not required.
17. Each stock certificate for shares issued to the Employee shall
have conspicuously written, printed, typed or stamped upon the face thereof,
or upon the reverse thereof with a conspicuous reference on the face thereof,
the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND QUALIFICATION UNDER THE CORPORATE SECURITIES LAW OF 1968, AS
AMENDED, AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF
REGISTRATION AND QUALIFICATION THEREUNDER OR APPLICABLE
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
THE QUALIFICATION REQUIREMENTS OF SUCH LAW. SUCH SHARES MAY NOT
BE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED OR OTHERWISE
DISPOSED OF IN ANY MANNER EXCEPT IN ACCORDANCE WITH AND SUBJECT
TO THE TERMS OF THE INCENTIVE STOCK OPTION AGREEMENT, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH
INCENTIVE STOCK OPTION AGREEMENT PROHIBITS ANY TRANSFER,
ASSIGNMENT, PLEDGE OR HYPOTHECATION OF SUCH SHARES TO SECURE ANY
OBLIGATION OF THE HOLDER HEREOF. EVERY CREDITOR OF THE HOLDER
HEREOF AND ANY PERSON ACQUIRING OR PURPORTING TO ACQUIRE THIS
CERTIFICATE OR THE SHARES HEREBY EVIDENCED OR ANY INTEREST THEREIN
IS HEREBY NOTIFIED OF THE EXISTENCE OF SUCH INCENTIVE STOCK OPTION
AGREEMENT, AND ANY ACQUISITION OR PURPORTED ACQUISITION OF THIS
CERTIFICATE OR THE SHARES HEREBY EVIDENCED OR ANY INTEREST THEREIN
SHALL BE SUBJECT TO ALL RIGHTS AND OBLIGATIONS OF THE PARTIES TO
SUCH STOCK OPTION AGREEMENT AS THEREIN SET FORTH.
18. In consideration of the granting of this option, the Employee
agrees that, as part of the Company's key management, executive and/or
technical staff, he or she will at all times exercise the highest degree of
loyalty to the Company. This obligation requires of the Employer a standard
of conduct which is not less than that which is required under applicable law
regarding corporate fiduciaries, self-dealing, and the usurpation of corporate
opportunities. In addition, the Employee agrees that during the period of
employment covered by this Agreement he or she will increase his or
her efforts on behalf of the Company, not compete with the Company, and not
engage in preparation to compete.
19. The parties hereto agree that any action relating to this
Stock Option Agreement shall be instituted and processed in the courts in
San Francisco County, California, and each party waives the right to change
of venue.
20. Subject to any employment contract with the Employee, the terms
of employment of the Employee shall be determined from time to time by the
Company or the subsidiary employing the Employee, as the case may be, and the
Company, or the subsidiary employing the Employee, as the case may be, shall
have the right, which is hereby expressly reserved, to terminate the employee
or change the terms of the employment at any time for any reason whatsoever,
with or without good cause.
21. Whenever shares are to be issued to the Employee in satisfaction
or payment of the rights conferred hereby, the Company shall have the right
to require the grantee to remit to the Company an amount sufficient to satisfy
federal, state and local withholding tax requirements prior to the delivery
of any certificate or certificates for such shares. Whenever payments are to
be made in cash, such payments shall be net of an amount sufficient to satisfy
federal, state and local withholding tax requirements.
22. In the event the Employee disposes of any of the shares that
may be acquired hereunder within two years of the date hereof or within one
year of the date this option is exercised, Employee agrees to notify the
Company in writing within ten days of the date of such disposition of
the number of shares disposed of, the nature of the transaction, and the
amount received (if any) upon such disposition. Employee understands that
such a disposition may result in imposition of withholding taxes.
23. The Committee shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation
and application of the Plan as are 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 Employee, 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 the Plan or this Agreement.
24. In the event that any provision in this Agreement shall be
invalid or unenforceable, such provision shall be severable from, and such
invalidity or unenforceability shall not be construed to have any effect on
the remaining provisions of this Agreement.
25. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the conflicts
of law principles thereof.
IN WITNESS HEREOF, the parties hereto have executed this Agreement,
in duplicate, this ____th day of _______, ____.
DOVER INVESTMENTS CORPORATION
By: ________________________
Title
ACCEPTED:
_____________________
Employee
_____________________
(Address)
