OVERLAND DATA, INC.
XXXXX XxXXXXXXX NON-QUALIFIED STOCK OPTION AGREEMENT
October 16, 1991
Overland Data, Inc., a California corporation (the "Company"), hereby grants
to XXXXX XxXXXXXXX, (the "Optionee"), an option to purchase 202,380 shares of
the Company's common stock at $.80 per share, subject to the terms and
conditions hereinafter set forth. In no event shall options under the Plan be
treated as Incentive Stock Options under Section 422A of the Internal Revenue
Code of 1986, as amended.
Terms and Conditions
1. Option Period and Limitation of Exercise.
Subject to the provisions of Section 5 below, this option may be exercised as
follows:
40,476 shares on October 1992
An additional 3,373 shares on the first day of each month thereafter
for 48 months (through September 1996;
provided, however, that no option shall be exercisable after the expiration
of ten years from the date of grant.
2. Method of Exercise.
This option may be exercised in whole or in part and from time to time by
delivery to the Company of written notice of exercise, directed to the attention
of the Treasurer, Secretary or Assistant Secretary, from the Optionee or his
personal representative, devisee or heir, as the case may be, accompanied by
this Stock Option Agreement and payment in full of the amount equal to the total
purchase price of the shares purchased; provided, however, that the Company
shall not be required to issue shares under this option when exercised by any
person other than the Optionee until it has received satisfactory evidence of
the legal right of such other person to exercise the Option. In the event of
partial exercise of this option, the Company shall endorse hereon the number of
shares purchased and the number of shares remaining and shall return this
Agreement to the appropriate holder.
3. Issuance of Shares.
As soon as practicable after receipt of notice of exercise of this option and
payment for the shares being purchased, the Company shall, without expense to
the person making such exercise, deliver to Optionee or other person entitled
thereto, a certificate or certificates for the shares being purchased; provided,
however, that the time of such delivery may be postponed by the Company for such
period as may be required for it with reasonable diligence to comply with
applicable requirements under any law or regulation applicable to the issuance
of transfer of such shares. If any such requirements prevent, directly or
indirectly, the issuance or transfer of such shares after diligent effort by the
Company to comply therewith, the Company shall have no further obligation, in
damages or otherwise, to the Optionee or his successor hereunder.
4. Adjustments. In the event of any change in the Common Stock of the Company
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split, or other change in the corporate or capital structure (not
including the issuance of additional shares of any class of the Company's stock
for adequate consideration received by the Company), appropriate adjustment
shall be made by the Board in the number of shares and the price per share
subject to outstanding options, and in the number of shares and the par value
thereof of the aggregate number of shares available for such options as set
forth in Section 2 hereof. Such adjustment shall be made so that the Plan and
options theretofore or thereafter to be issued thereunder shall remain
substantially the same as before such change, and so that the benefits
receivable under any outstanding option shall not be increased or decreased from
those which the optionee had before such change. The determination of any such
adjustment by the Board shall be final, binding and conclusive. Anything herein
contained to the contrary notwithstanding, upon the dissolution of the Company,
or upon any merger or consolidation of the Company where the Company is not the
surviving corporation and the surviving corporation does not agree to exchange
its options for options granted under the Plan, all options granted under the
Plan shall terminate and thereupon become null and void; but the optionee shall
have the right immediately prior to such dissolution, merger or consolidation,
to exercise any such option without regard to any otherwise applicable
restriction as to time of exercise, other than expiration of the Option Period.
5. Effect of Termination of Optionee
a. If Optionee ceases to be a director, officer or employee of the Company,
for any reason other than by reason of death, permanent disability, or
termination for cause, Optionee may exercise his options in accordance with
their terms only for a period of thirty (30) days after such cessation (but not
beyond the Option Period). Any exercise of options after such cessation may be
only to the extent of the full number of shares the Optionee was entitled to
purchase under the option on the date of such cessation, plus a portion of the
additional number of shares, if any, he would have become entitled to purchase
on the next anniversary date of the Date of the Grant of the option following
such cessation, such portion to be determined by multiplying such additional
number of shares by a fraction, the numerator of which shall be the number of
days from the anniversary date of the Date of Grant preceding such cessation to
the date of such cessation and the denominator of which shall be 365. Such
portion shall be rounded, if necessary to the nearest whole share.
b. If Optionee becomes permanently disabled and ceases by reason thereof
to be a director, officer or employee of the Company or if Optionee dies
while a director, officer or employee of the Company, any options held by
such permanently disabled or deceased Optionee will continue in effect and
may be exercised in accordance with their terms for a period of six (6)
months from the date of the Optionee's permanent disability or death (but not
beyond the Option Period) by Optionee in the case of permanent disability,
or, in the case of death, by the executor or administrator of Optionee's
estate, or in the event there is no such executor or administrator, by the
person or persons to who Optionee's rights under the option shall pass by
will or the laws of descent and distribution. Optionee will be deemed to be
permanently disabled if Optionee is, by reason or any medically determined
physical or mental impairment expected to result in death or to be of
continuous duration of not less than one year, unable to engage in
substantial gainful employment.
c. If the termination of Optionee's position as a director, officer or
employee of the Company is for cause (including, but not limited to, any act of
dishonesty, unethical conduct, willful misconduct, fraud or embezzlement, or any
unauthorized disclosure of confidential information or trade secrets, any of
which occurs in connection with the optionee's position as a director, officer
or employee of the Company), the unvested options held by Optionee shall
thereupon be canceled and Optionee shall have no right to exercise any part of
such unvested options after such termination. Notwithstanding the foregoing,
vested options held by Optionee shall not be subject to termination and shall
continue in full force and effect in accordance with the terms thereof.
d. Options shall not be affected by authorized leaves of absence so long as
Optionee continues to be a director, officer or employee of the Company.
6. Nontransferability of Options.
During the lifetime of Optionee, options granted hereunder shall be
exercisable only by Optionee (or his or her duly appointed and acting guardian
or conservator) and shall not be assignable or transferable. In the event of the
death of an optionee, options granted hereunder shall not be transferable other
than by will or by the laws of descent and distribution. Options may, however,
be surrendered to the Company for cancellation for such consideration and upon
such terms as may be mutually agreed upon by the Company and the holder of such
options.
7. Effective Date and Expiration of the Plan.
The Plan becomes effective upon its adoption by the Board of Directors.
Unless sooner terminated, the Plan shall expire on October 1, 2001.
8. Amendment and Termination of Plan Prior to Expiration of Date.
At any time prior to the expiration of the Plan, the Board my terminate,
suspend, modify or amend the Plan, provided that in no event shall any
termination, suspension, modification or amendment of the Plan alter or impair,
without the consent of the respective Optionee, any rights or obligations under
options theretofore granted under the Plan, subject only to cancellation as
provided in Section 6 and in the following Section 12.
9. Compliance with Applicable Law.
This Plan, options granted hereunder, and the issuance of Common Stock upon
exercise of such options are or may be subject to compliance with various laws
and the rules, regulations and policies of various regulatory bodies and
agencies, including the Securities and Exchange Commission and the California
Department of Corporations, as now in effect or as may hereafter be adopted or
amended. The grant of options under the Plan and the issuance of Common Stock
upon the exercise thereof are each expressly conditioned upon compliance with
all such laws, rules, regulations and policies.
10. Delivery of Financial Information
During such time as options remain outstanding hereunder, the Company shall
deliver to the optionees financial and other information regarding the Company
in accordance with Rule 260.140.46 of Title 10, Chapter 3 of the California Code
of Regulations.
11. Cancellation of Options.
At any time prior to the expiration of the Plan, the Board may, with the
written consent of the optionee, cancel all options, or any portion thereof
previously granted to such optionee.
12. No Rights as Shareholder.
An Optionee hereunder shall have no rights as a shareholder with respect to
any shares of Common Stock covered by options granted hereunder until the date
of issuance of a stock certificate to such optionee. Except as may be provided
under Section 6 of the Plan, no adjustment shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate is
issued.
13. Limitation of Rights; Employment Relationship.
Neither the establishment of the Plan or any modifications thereof, nor the
grant of any options hereunder, shall be construed as giving to any optionee or
any other person any legal or equitable right against the Company except as
specifically provided herein; and, in no event, shall the terms of employment of
any employee be modified or in any way be affected hereby.
Note: The foregoing Xxxxx XxXxxxxxx Non-Qualified Stock Option Agreement was
adopted by the Board of Directors on October 16, 1991.
OVERLAND DATA, INC.
/s/ Xxxxxx X. Xxxx
--------------------
BY: Xxxxxx X. Xxxx
Secretary
