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Exhibit 99.5
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered into, effective
as of January 5, 1997, by MULTIPLE ZONES INTERNATIONAL, INC., a Washington
corporation (the "Company"), and XXXX X. XXXXX (the "Holder").
R E C I T A L
The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company to grant the option provided for herein
to the Holder in consideration of services rendered and to be rendered to the
Company.
NOW, THEREFORE, the Company and the Holder covenant and agree as follows:
1. GRANT OF THE OPTION. The Company hereby grants to the Holder a stock
option (the "Option") to acquire from the Company two thousand five hundred
(2,500) shares of the Common Stock of the Company, no par value per share (the
"Common Stock"), at the price of Ten and One-half Dollars ($10.50) per share
(the "Option Price"), subject to all of the provisions of this Agreement.
2. TERM OF THE OPTION. Unless earlier terminated in accordance with the
provisions of this Agreement, the Option will terminate on January 4, 2007.
3. VESTING. The Option will vest and become exercisable (a) as to
twenty-five percent (25%) of the shares subject thereto on January 5, 1998, and
(b) as to an additional twenty-five percent (25%) of the shares subject thereto
on January 5 of each succeeding year through and including January 5, 2001;
PROVIDED, HOWEVER, that, if the Holder ceases to serve as a member of the Board
for any reason, including death or disability, the Option will not vest further
thereafter.
4. ADJUSTMENTS. If the Company subdivides its outstanding shares of Common
Stock into a greater number of shares of Common Stock (by stock dividend, stock
split, reclassification or otherwise) or combines its outstanding shares of
Common Stock into a smaller number of shares of Common Stock (by reverse stock
split, reclassification or otherwise), or if the Board determines, in its sole
discretion, that any stock dividend, extraordinary cash dividend,
reclassification, recapitalization, reorganization, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Stock, or other similar corporate event (including mergers or consolidations
other than those which constitute Significant Transactions) affects the Common
Stock such that an adjustment is required in order to preserve the benefits or
potential benefits intended to be made available under this Option, then the
Board shall make such adjustments to (a) the number of shares of Common Stock
subject to this Option, and (b) the Option Price, as the Board, in its sole
discretion deems equitable and appropriate. The Board may, if deemed
appropriate, provide for a cash payment to the Holder in connection with any
adjustment made pursuant to this Section 4.
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5. EXERCISE OF THE OPTION. In order to exercise the Option, the Holder
must do the following:
(a) deliver to the Company a written notice, in the form of the
attached Exhibit A, specifying the number of shares of Common Stock for
which the Option is being exercised;
(b) surrender this Agreement to the Company;
(c) tender payment of the aggregate Option Price for the shares for
which the Option is being exercised, which payment may be made (i) in cash
or by check; (ii) by delivery to the Company of shares of Common Stock
that (A) have a Fair Market Value (as defined below), as of the date of
exercise, equal to the aggregate Option Price payable, and (B) have been
held by the Holder for at least six (6) months prior to the date of
exercise; or (iii) by such other means as the Board, in its sole
discretion, shall permit at the time of exercise;
(d) pay, or make arrangements satisfactory to the Board for payment
to the Company of, all federal, state and local taxes, if any, required to
be withheld by the Company in connection with the exercise of the Option;
and
(e) execute and deliver to the Company any other documents required
from time to time by the Board in order to promote compliance with the
1933 Act, applicable state securities laws, or any other applicable law,
rule or regulation.
For purposes of this Section 5, "Fair Market Value" on any day means, if the
Common Stock is publicly traded, the last sales price (or, if no last sales
price is reported, the average of the high bid and low asked prices) for a share
of Common Stock on that day (or, if that day is not a trading day, on the next
preceding trading day), as reported by the principal exchange on which the
Common Stock is listed, or, if the Common Stock is publicly traded but not
listed on an exchange, as reported by The Nasdaq Stock Market, or, if such
prices or quotations are not reported by The Nasdaq Stock Market, as reported by
any other available source of prices or quotations selected by the Committee. If
the Common Stock is not publicly traded, or if the Fair Market Value is not
determinable by any of the foregoing means, the Fair Market Value on any day
shall be determined in good faith by the Board on the basis of such
considerations as it deems appropriate.
6. DELIVERY OF SHARE CERTIFICATE. As soon as practicable after the Option
has been duly exercised, the Company will deliver to the Holder a certificate
for the shares of Common Stock for which the Option was exercised. Unless the
Option has expired or been exercised in full, the Company and the Holder agree
to execute a new Stock Option Agreement, covering the remaining shares of Common
Stock that may be acquired upon exercise of the Option, which will be identical
to this Agreement except as to the number of shares of Common Stock subject
thereto. In lieu of replacing this Agreement in such manner, the Company may
affix to this Agreement an appropriate notation indicating the number of shares
for which the Option was exercised and return this Agreement to the Holder.
7. NO RIGHT TO CONTINUE AS DIRECTOR. Nothing contained in this Agreement
shall confer or be construed to confer on the Holder any right to continue as a
member of the Board.
8. RIGHTS AS SHAREHOLDER. The Holder will have no rights as a shareholder
of the Company on account of the Option or on account of shares of Common Stock
which will be
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acquired upon exercise of the Option (but with respect to which no certificates
have been delivered to the Holder).
9. TAX WITHHOLDING. The Holder agrees to pay, or make arrangements
satisfactory to the Board for payment to the Company of, all federal, state and
local income, employment and other taxes, if any, required to be withheld by the
Company in connection with the exercise of the Option or any sale, transfer or
other disposition of any shares of Common Stock acquired upon exercise of the
Option. If the Holder fails to do so, then the Holder hereby authorizes the
Company to deduct all or any portion of such taxes from any payment of any kind
otherwise due to the Holder.
10. FURTHER ASSURANCES. The Holder agrees to from time to time execute
such additional documents as the Company may reasonably require in order to
effectuate the purposes of this Agreement.
11. BINDING EFFECT. This Agreement shall be binding upon the Holder and
his or her heirs, successors and assigns.
12. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the entire
agreement and understanding between the Company and the Holder regarding the
subject matter hereof. No modification of the Option or this Agreement, or
waiver of any provision of this Agreement, shall be valid unless in writing and
duly executed by the Company and the Holder. The failure of any party to enforce
any of that party's rights against the other party for breach of any of the
terms of this Agreement shall not be construed as a waiver of such rights as to
any continued or subsequent breach.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Washington.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
"Company" MULTIPLE ZONES
INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
Secretary
"Holder" /s/ Xxxx X. XxXxx
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XXXX X. XXXXX
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FORM OF EXERCISE OF OPTION
To: MULTIPLE ZONES INTERNATIONAL, INC.
000 Xxxxx Xxxxx Xxx
Xxxxxx, Xxxxxxxxxx 00000-0000
The undersigned holds Option Number OPT-010 (the "Option"), represented
by a Stock Option Agreement dated effective as of January 5, 1997 (the
"Agreement"), granted to the undersigned by Multiple Zones International, Inc.
(the "Company"). The undersigned hereby exercises the Option and elects to
purchase _______________ shares (the "Shares") of Common Stock of the Company
pursuant to the Option. This notice is accompanied by full payment of the Option
Price for the Shares in cash or by check or in another manner permitted by
Section 5(c) of the Agreement. The undersigned has also paid, or make
arrangements satisfactory to the Board for payment of, all federal, state and
local taxes, if any, required to be withheld by the Company in connection with
the exercise of the Option.
Date: ________________, _____.
___________________________________
Name of Holder
EXHIBIT A
