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Exhibit 10.11
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made this 21st
day of March, 1995 between GENERAL AUTOMATION, INC., a Delaware corporation (the
"Company"), and Xxxxxxxx Xxxxxxx, an employee and/or director of the company
(the "Optionee").
R E C I T A L:
The Company desires to grant to the Optionee, and the Optionee
desires to accept from the Company, options to purchase 485,000 shares of the
Company's Common Stock par value $0.10 per share (the "Common Stock"), on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
hereinafter set forth and for good and valuable consideration, the parties
hereto have agreed, and do hereby agree, as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee
the right and option (the "Option") to purchase all or any part of Four Hundred
Eighty-Five Thousand (485,000) shares of the Common Stock (such number being
subject to adjustment as provided in Section 7 hereof) on the terms and
conditions herein set forth. The Option granted herein is not intended to be an
"incentive option" within the meaning of the Internal Revenue Code of 1986, as
amended.
2. PURCHASE PRICE. The purchase price of the shares of the
Common Stock covered by the Option shall be Eighty-Six Cents ($0.86) per share
(such price being subject to adjustment as provided in Section 7 hereof).
3. TERM OF OPTION. The term of the Option shall commence on
the date hereof and all rights to purchase shares hereunder shall cease at 5:00
p.m. Pacific time on the fifth anniversary of the date hereof subject to earlier
termination as provided herein.
4. EXERCISE OF OPTION. Except as may otherwise be provided in
this Agreement, the Option shall be exercisable in full at any time or in part
from time to time during the term of the Option. The purchase price of the
shares as to which the Option shall be exercised shall be paid in full at the
time of exercise: (i) in cash or by certified check or by bank draft; (ii)
subject to any legal restrictions on the acquisition or purchase of its shares
by the Company, by the delivery of shares of Common Stock of the Company which
shall be deemed to have a value to the Company equal to the aggregate fair
market value (which shall be determined pursuant to Section 8 below) of such
shares; or (iii) in any combination of (i) or (ii) above. The Optionee shall not
have any of the rights of a shareholder with respect to the shares covered by
the Option as to any shares of Common Stock not actually issued and delivered to
the optionee.
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5. NONTRANSFERABILITY OF OPTION. The Option shall not be
transferable otherwise than by will or the laws of descent and distribution, and
the Option may be exercised, during the lifetime of the Optionee, only by the
Optionee. More particularly (but without limiting the generality of the
foregoing), the Option may not be assigned, transferred, pledged or hypothecated
in any way, shall not be assignable by operation of law and shall not be subject
to execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option, shall be null and void and without effect.
6. OTHER EXPIRATIONS. In addition to any other event causing
an expiration or termination of the Option, the Option shall expire and all
rights to purchase shares cease (to the extent not theretofore terminated or
expired as herein provided) upon (i) the effective date of the dissolution or
liquidation of the Company or of a merger, consolidation or reorganization
(including the sale of substantially all of its assets) of the Company with one
or more entities, corporate or otherwise, as a result of which the Company is
not the surviving entity, or (ii) the merger or other reorganization of the
Company with one or more entities, corporate or otherwise, as a result of which
the outstanding shares of Common Stock of the company are changed into or
exchanged for shares of the capital stock or other securities of another entity
or for cash or other property; provided, however, that the Company may, in its
discretion, and immediately prior to any such transaction, cause a new option to
be substituted for this Option or cause this option to be assumed by a successor
entity or a parent or subsidiary of such entity; and such new option shall apply
to all shares issued in addition to or substitution, replacement or modification
of the shares of Common Stock theretofore covered by this Option.
If no provision is made for the assumption of this Option or
the substitution for this Option of a new option as hereinabove provided, then
the Company shall cause written notice to be given to the Optionee of the
proposed transaction not less than thirty (30) days prior to the anticipated
effective date thereof. To the extent the Option remains unexercised as of the
effective date of such transaction, the Option shall, concurrently with the
consummation of such transaction, terminate and become void and of no effect.
7. ADJUSTMENTS. In the event that the outstanding shares of
Common Stock of the Company are hereafter increased or decreased or changed into
or exchanged for a different number or kind of shares or other securities of the
Company by reason of merger, consolidation or reorganization in which the
Company is the surviving corporation or of a recapitalization, stock split,
combination of shares, reclassification, reincorporation, stock dividend (in
excess of 2%), or other change in the capital structure of the Company, (and
provided that the Option is not terminated as a result thereof pursuant to
Section 6 hereof), then the number and class of shares subject to this Option,
and the purchase price per share (but not the total purchase price), shall all
be proportionately adjusted so that, upon exercise of this Option, the Optionee
shall receive the number and class of shares the Optionee would have received
had the Optionee been the holder of the number of shares of Common Stock in the
Company, for which this Option is being exercised, on the date of such change or
increase or
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decrease in the number or class of issued shares of Common Stock of the Company.
Adjustments under this paragraph shall be made by the Board of Directors of the
Company whose determination with respect thereto shall be final and conclusive.
No fractional share shall be issued under this Option or upon any such
adjustment.
8. DETERMINATION OF FAIR MARKET VALUE. For purposes of
determining the fair market value of the Company's Common Stock pursuant to
Section 4 of this Agreement, the fair market value of the Company's Common Stock
shall, if the Common Stock is not listed or admitted to trading on a national
stock exchange, be the average of the closing bid price and asked price of the
Common Stock in the over-the-counter market on the date of exercise or, if the
Company's Common Stock is then listed or admitted to trading on any national
stock exchange, the closing sale price on such day on the principal stock
exchange on which the Company's Common Stock is then listed or admitted to
trading. If no closing bid and asked prices are quoted on such day, or if no
sale takes place on such day on such principal exchange, as the case may be,
then the closing sale price of the Common Stock on such exchange on the next
preceding day on which a sale occurred, or the closing bid and asked prices on
the next preceding day on which such prices were quoted, as the case may be,
shall be the fair market value of the Common Stock.
9. TERMINATION OF EMPLOYMENT OR STATUS AS A DIRECTOR. In the
event that the Optionee shall cease to be an officer or director of the Company
for any reason, including death, retirement, or otherwise, then his Option may
be exercised at any time within sixty (60) days of the date of such cessation,
but in any event no later than the date of expiration of the Option pursuant to
the other provisions of this Agreement, and if not so exercised within such time
shall become void and of no effect at the end of such time.
10. METHOD OF EXERCISING OPTION. Subject to the terms and
conditions of this Agreement, the Option may be exercised by written notice to
the Company, at its principal office in the State of California. Such notice
shall state the election to exercise the Option, the number of shares in respect
of which it is being exercised, and shall be signed by the person so exercising
the Option. Such notice shall also be accompanied by payment for the full
exercise price of such shares. In the event the Option shall be exercised by any
person or persons other than the Optionee in accordance with the terms hereof,
such notice shall also be accompanied by appropriate proof of the right of such
person or persons to exercise the Option. All shares that shall be purchased
upon the exercise of the Option as provided herein shall be fully paid and
nonassessable.
11. REPRESENTATIONS OF OPTIONEE, LEGEND CONDITION. The
Optionee acknowledges that the Option has not been, and the shares of Common
Stock purchasable upon exercise of the Option may not then be, registered under
the Securities Act of 1933 in reliance upon exemptions from such registration
for nonpublic offerings. Accordingly, the Optionee acknowledges and agrees that
the stock certificates representing any shares of Common Stock issued upon
exercise of the Option shall (unless such shares shall hereafter have been
registered under the Securities Act of 1933, which the Company has no obligation
to do) bear and be subject to a legend in substantially the following form:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN RELIANCE
UPON EXEMPTIONS FROM SUCH REGISTRATION FOR NONPUBLIC OFFERINGS.
ACCORDINGLY, NO SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE
SECURITIES OR ANY INTEREST THEREIN MAY BE MADE WITHOUT REGISTRATION
UNDER THE ACT OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
The Optionee hereby represents that all shares of Common Stock
in the Company to be purchased by the Optionee pursuant to the exercise of this
Option will be acquired by Optionee for investment and not with a view to the
distribution thereof except as may be permitted under the Securities Act of 1933
and the rules and regulations thereunder. The Optionee agrees that he or she
shall, upon reasonable request by the Company in connection with any exercise of
the Option, execute and deliver an investment letter in such form as may be
deemed appropriate by the Company.
12. RESERVATION OF SHARES. The Company shall at all times
during the term of the Option reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement, shall pay all original issue and transfer taxes with respect to the
issue and transfer of shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith, and will from time
to time use its best efforts to comply with all laws and regulations, which, in
the opinion of counsel for the Company, shall be applicable thereto.
13. No AGREEMENT TO RETAIN AS EMPLOYEE OR DIRECTOR. Nothing in
this Agreement shall be construed to constitute or to be evidence of any
agreement or understanding, express or implied, on the part of the Company or
any subsidiary of the Company, to retain the Optionee as an employee or director
of the Company or any subsidiary.
14. TAX WITHHOLDING. The Company shall have the right, in
connection with any exercise of this Option, to deduct from the Optionee's
compensation, or require the Optionee to remit to the Company, an amount
sufficient to satisfy all federal, state and local tax withholding requirements.
15. GENERAL PROVISIONS. Notwithstanding any other provisions
of this Agreement, the Company shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock upon the exercise of this
Option prior to fulfillment of all of the following conditions:
(a) The listing or approval for listing upon notice of
issuance, of such shares on any securities exchange as may at the time be the
market for the Company's Common Stock;
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(b) Any registration or other qualification of such shares
under any state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Board of Directors of the
Company shall, in its absolute discretion upon the advise of counsel, deem
necessary or advisable; and
(c) The obtaining of any other consent, approval or permit
from any state or federal governmental agency which the Board of Directors of
the Company shall, in its absolute discretion upon the advice of counsel,
determine to be necessary or advisable.
The Company shall diligently endeavor to obtain fulfillment of all the
foregoing conditions.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and supersedes any prior written or oral agreements
between the parties concerning the subject matter contained herein. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto, relating to the subject matter contained in this
Agreement, which are not fully expressed herein.
17. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but such counterparts, when taken
together, shall constitute but one and the same agreement.
18. NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery, or, if
mailed, 48 hours after deposit with the United States Postal Service for mailing
via registered or certified mail, addressed to the Company at its then principal
executive offices, or to the Optionee at the address set forth below his or her
signature hereto, or at such other address as such parties may hereafter
designate by written notice to the other party.
IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement
to be duly executed by its officer, "hereunto duly authorized, and the Optionee
has hereunto set his or her hand, all as of the day and year first above
written.
GENERAL AUTOMATION, INC. Optionee
A Delaware Corporation
By: /s/ XXXX X. XXXXXXXX /s/ XXXXX XXXXXXX
---------------------------- -------------------
Xxxx X. Xxxxxxxxx (Signature)
Its: Vice President Finance & CFO 00000 Xxxxxxxx Xxxx
---------------------------- -------------------
Xxxxxxxxx. XX 00000
-------------------
(Address)
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STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made this 21st
day of March, 1995 between GENERAL AUTOMATION, INC., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxx, an employee and/or director of the company (the
"Optionee").
R E C I T A L:
The Company desires to grant to the Optionee, and the Optionee
desires to accept from the Company, options to purchase 485,000 shares of the
Company's Common Stock par value $0.10 per share (the "Common Stock"), on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
hereinafter set forth and for good and valuable consideration, the parties
hereto have agreed, and do hereby agree, as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee
the right and option (the "Option") to purchase all or any part of Four Hundred
Eighty-Five Thousand (485,000) shares of the Common Stock (such number being
subject to adjustment as provided in Section 7 hereof) on the terms and
conditions herein set forth. The Option granted herein is not intended to be an
"incentive option" within the meaning of the Internal Revenue Code of 1986, as
amended.
2. PURCHASE PRICE. The purchase price of the shares of the
Common Stock covered by the Option shall be Eighty-Six Cents ($0.86) per share
(such price being subject to adjustment as provided in Section 7 hereof).
3. TERM OF OPTION. The term of the Option shall commence on
the date hereof and all rights to purchase shares hereunder shall cease at 5:00
p.m. Pacific time on the fifth anniversary of the date hereof subject to earlier
termination as provided herein.
4. EXERCISE OF OPTION. Except as may otherwise be provided in
this Agreement, the Option shall be exercisable in full at any time or in part
from time to time during the term of the Option. The purchase price of the
shares as to which the Option shall be exercised shall be paid in full at the
time of exercise: (i) in cash or by certified check or by bank draft; (ii)
subject to any legal restrictions on the acquisition or purchase of its shares
by the Company, by the delivery of shares of Common Stock of the Company which
shall be deemed to have a value to the Company equal to the aggregate fair
market value (which shall be determined pursuant to Section 8 below) of such
shares; or (iii) in any combination of (i) or (ii) above. The Optionee shall not
have any of the rights of a shareholder with respect to the shares covered by
the Option as to any shares of Common Stock not actually issued and delivered to
the optionee.
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5. NONTRANSFERABILITV OF OPTION. The Option shall not be
transferable otherwise than by will or the laws of descent and distribution, and
the Option may be exercised, during the lifetime of the Optionee, only by the
Optionee. More particularly (but without limiting the generality of the
foregoing), the Option may not be assigned, transferred, pledged or hypothecated
in any way, shall not be assignable by operation of law and shall not be subject
to execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option, shall be null and void and without effect.
6. OTHER EXPIRATIONS. In addition to any other event causing
an expiration or termination of the Option, the Option shall expire and all
rights to purchase shares cease (to the extent not theretofore terminated or
expired as herein provided) upon (i) the effective date of the dissolution or
liquidation of the Company or of a merger, consolidation or reorganization
(including the sale of substantially all of its assets) of the Company with one
or more entities, corporate or otherwise, as a result of which the Company is
not the surviving entity, or (ii) the merger or other reorganization of the
Company with one or more entities, corporate or otherwise, as a result of which
the outstanding shares of Common Stock of the company are changed into or
exchanged for shares of the capital stock or other securities of another entity
or for cash or other property; provided, however, that the Company may, in its
discretion, and immediately prior to any such transaction, cause a new option to
be substituted for this Option or cause this option to be assumed by a successor
entity or a parent or subsidiary of such entity; and such new option shall apply
to all shares issued in addition to or substitution, replacement or modification
of the shares of Common Stock theretofore covered by this Option.
If no provision is made for the assumption of this Option or
the substitution for this Option of a new option as hereinabove provided, then
the Company shall cause written notice to be given to the Optionee of the
proposed transaction not less than thirty (30) days prior to the anticipated
effective date thereof To the extent the Option remains unexercised as of the
effective date of such transaction, the Option shall, concurrently with the
consummation of such transaction, terminate and become void and of no effect.
7. ADJUSTMENTS. In the event that the outstanding shares of
Common Stock of the Company are hereafter increased or decreased or changed into
or exchanged for a different number or kind of shares or other securities of the
Company by reason of merger, consolidation or reorganization in which the
Company is the surviving corporation or of a recapitalization, stock split,
combination of shares, reclassification, reincorporation, stock dividend (in
excess of 2%), or other change in the capital structure of the Company, (and
provided that the Option is not terminated as a result thereof pursuant to
Section 6 hereof), then the number and class of shares subject to this Option,
and the purchase price per share (but not the total purchase price), shall all
be proportionately adjusted so that, upon exercise of this Option, the Optionee
shall receive the number and class of shares the Optionee would have received
had the Optionee been the holder of the number of shares of Common Stock in the
Company, for which this Option is being exercised, on the date of such change or
increase or
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decrease in the number or class of issued shares of Common Stock of the Company.
Adjustments under this paragraph shall be made by the Board of Directors of the
Company whose determination with respect thereto shall be final and conclusive.
No fractional share shall be issued under this Option or upon any such
adjustment.
8. DETERMINATION OF FAIR MARKET VALUE. For purposes of
determining the fair market value of the Company's Common Stock pursuant to
Section 4 of this Agreement, the fair market value of the Company's Common Stock
shall, if the Common Stock is not listed or admitted to trading on a national
stock exchange, be the average of the closing bid price and asked price of the
Common Stock in the over-the-counter market on the date of exercise or, if the
Company's Common Stock is then listed or admitted to trading on any national
stock exchange, the closing sale price on such day on the principal stock
exchange on which the Company's Common Stock is then listed or admitted to
trading. If no closing bid and asked prices are quoted on such day, or if no
sale takes place on such day on such principal exchange, as the case may be,
then the closing sale price of the Common Stock on such exchange on the next
preceding day on which a sale occurred, or the closing bid and asked prices on
the next preceding day on which such prices were quoted, as the case may be,
shall be the fair market value of the Common Stock.
9. TERMINATION OF EMPLOYMENT OR STATUS AS A DIRECTOR. In the
event that the Optionee shall cease to be an officer or director of the Company
for any reason, including death, retirement, or otherwise, then his Option may
be exercised at any time within sixty (60) days of the date of such cessation,
but in any event no later than the date of expiration of the Option pursuant to
the other provisions of this Agreement, and if not so exercised within such time
shall become void and of no effect at the end of such time.
10. METHOD OF EXERCISING OPTION. Subject to the terms and
conditions of this Agreement, the Option may be exercised by written notice to
the Company, at its principal office in the State of California. Such notice
shall state the election to exercise the Option, the number of shares in respect
of which it is being exercised, and shall be signed by the person so exercising
the Option. Such notice shall also be accompanied by payment for the full
exercise price of such shares. In the event the Option shall be exercised by any
person or persons other than the Optionee in accordance with the terms hereof,
such notice shall also be accompanied by appropriate proof of the right of such
person or persons to exercise the Option. All shares that shall be purchased
upon the exercise of the Option as provided herein shall be fully paid and
nonassessable.
11. REPRESENTATIONS OF OPTIONEE, LEGEND CONDITION. The
Optionee acknowledges that the Option has not been, and the shares of Common
Stock purchasable upon exercise of the Option may not then be, registered under
the Securities Act of 1933 in reliance upon exemptions from such registration
for nonpublic offerings. Accordingly, the Optionee acknowledges and agrees that
the stock certificates representing any shares of Common Stock issued upon
exercise of the Option shall (unless such shares shall hereafter have been
registered under the Securities Act of 1933, which the Company has no obligation
to do) bear and be subject to a legend in substantially the following form:
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9
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN RELIANCE
UPON EXEMPTIONS FROM SUCH REGISTRATION FOR NONPUBLIC OFFERINGS.
ACCORDINGLY, NO SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE
SECURITIES OR ANY INTEREST THEREIN MAY BE MADE WITHOUT REGISTRATION
UNDER THE ACT OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
The Optionee hereby represents that all shares of Common Stock
in the Company to be purchased by the Optionee pursuant to the exercise of this
Option will be acquired by Optionee for investment and not with a view to the
distribution thereof except as may be permitted under the Securities Act of 1933
and the rules and regulations thereunder. The Optionee agrees that he or she
shall, upon reasonable request by the Company in connection with any exercise of
the Option, execute and deliver an investment letter in such form as may be
deemed appropriate by the Company.
12. RESERVATION OF SHARES. The Company shall at all times
during the term of the Option reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement, shall pay all original issue and transfer taxes with respect to the
issue and transfer of shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith, and will from time
to time use its best efforts to comply with all laws and regulations, which, in
the opinion of counsel for the Company, shall be applicable thereto.
13. No AGREEMENT TO RETAIN AS EMPLOYEE OR DIRECTOR. Nothing in
this Agreement shall be construed to constitute or to be evidence of any
agreement or understanding, express or implied, on the part of the Company or
any subsidiary of the Company, to retain the Optionee as an employee or director
of the Company or any subsidiary.
14. TAX WITHHOLDING. The Company shall have the right, in
connection with any exercise of this Option, to deduct from the Optionee's
compensation, or require the Optionee to remit to the Company, an amount
sufficient to satisfy all federal, state and local tax withholding requirements.
15. GENERAL PROVISIONS. Notwithstanding any other provisions
of this Agreement, the Company shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock upon the exercise of this
Option prior to fulfillment of all of the following conditions:
(a) The listing or approval for listing upon notice of
issuance, of such shares on any securities exchange as may at the time be the
market for the Company's Common Stock;
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(b) Any registration or other qualification of such shares
under any state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Board of Directors of the
Company shall, in its absolute discretion upon the advise of counsel, deem
necessary or advisable; and
(c) The obtaining of any other consent, approval or permit
from any state or federal governmental agency which the Board of Directors of
the Company shall, in its absolute discretion upon the advice of counsel,
determine to be necessary or advisable.
The Company shall diligently endeavor to obtain fulfillment of
all the foregoing conditions.
16. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto and supersedes any prior written or oral
agreements between the parties concerning the subject matter contained herein.
There are no representations, agreements, arrangements or understandings, oral
or written, between the parties hereto, relating to the subject matter contained
in this Agreement, which are not fully expressed herein.
17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but such
counterparts, when taken together, shall constitute but one and the same
agreement.
18. NOTICES. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal
delivery, or, if mailed, 48 hours after deposit with the United States Postal
Service for mailing via registered or certified mail, addressed to the Company
at its then principal executive offices, or to the Optionee at the address set
forth below his or her signature hereto, or at such other address as such
parties may hereafter designate by written notice to the other party.
IN WITNESS WHEREOF, the Company has caused this Stock Option
Agreement to be duly executed by its officer, thereunto duly authorized, and the
Optionee has hereunto set his or her hand, all as of the day and year first
above written.
GENERAL AUTOMATION, INC. Optionee
A Delaware Corporation
By: /s/ XXXX X. XXXXXXXX /s/ XXXXXX X. XXXXX
----------------------------- ------------------------
Xxxx X. Xxxxxxxx (Signature)
Its: Vice President Finance & CFO 000 Xxxxxxxx Xx
---------------------------- ------------------------
Xxxxxx Xxx Xxx, XX 00000
------------------------
(Address)
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STOCK OPTION AGREEMENT
----------------------
THIS STOCK OPTION AGREEMENT ("Agreement") is made this 21st
day of March, 1995 between GENERAL AUTOMATION, INC., a Delaware corporation
(the "Company"), and Xxxxxxx X. Xxxxxxxxx, an employee and/or director of the
company (the "Optionee").
R E C I T A L:
--------------
The Company desires to grant to the Optionee, and the Optionee
desires to accept from the Company, options to purchase 485,000 shares of the
Company's Common Stock par value $0.10 per share (the "Common Stock"), on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
hereinafter set forth and for good and valuable consideration, the parties
hereto have agreed, and do hereby agree, as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee
the right and option (the "Option") to purchase all or any part of Four Hundred
Eighty-Five Thousand (485,000) shares of the Common Stock (such number being
subject to adjustment as provided in Section 7 hereof) on the terms and
conditions herein set forth. The Option granted herein is not intended to be an
"incentive option" within the meaning of the Internal Revenue Code of 1986, as
amended.
2. PURCHASE PRICE. The purchase price of the shares of the
Common Stock covered by the Option shall be Eighty-Six Cents ($0.86) per share
(such price being subject to adjustment as provided in Section 7 hereof).
3. TERM OF OPTION. The term of the Option shall commence on
the date hereof and all rights to purchase shares hereunder shall cease at 5:00
p.m. Pacific time on the fifth anniversary of the date hereof subject to earlier
termination as provided herein.
4. EXERCISE OF OPTION. Except as may otherwise be provided in
this Agreement, the Option shall be exercisable in full at any time or in part
from time to time during the term of the Option. The purchase price of the
shares as to which the Option shall be exercised shall be paid in full at the
time of exercise: (i) in cash or by certified check or by bank draft; (ii)
subject to any legal restrictions on the acquisition or purchase of its shares
by the Company, by the delivery of shares of Common Stock of the Company which
shall be deemed to have a value to the Company equal to the aggregate fair
market value (which shall be determined pursuant to Section 8 below) of such
shares; or (iii) in any combination of (i) or (ii) above. The Optionee shall not
have any of the rights of a shareholder with respect to the shares covered by
the Option as to any shares of Common Stock not actually issued and delivered to
the optionee.
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5. NONTRANSFERABILITY OF OPTION. The Option shall not be
transferable otherwise than by will or the laws of descent and distribution, and
the Option may be exercised, during the lifetime of the Optionee, only by the
Optionee. More particularly (but without limiting the generality of the
foregoing), the Option may not be assigned, transferred, pledged or hypothecated
in any way, shall not be assignable by operation of law and shall not be subject
to execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option, shall be null and void and without effect.
6. OTHER EXPIRATIONS. In addition to any other event causing
an expiration or termination of the Option, the Option shall expire and all
rights to purchase shares cease (to the extent not theretofore terminated or
expired as herein provided) upon (i) the effective date of the dissolution or
liquidation of the Company or of a merger, consolidation or reorganization
(including the sale of substantially all of its assets) of the Company with one
or more entities, corporate or otherwise, as a result of which the Company is
not the surviving entity, or (ii) the merger or other reorganization of the
Company with one or more entities, corporate or otherwise, as a result of which
the outstanding shares of Common Stock of the company are changed into or
exchanged for shares of the capital stock or other securities of another entity
or for cash or other property; provided, however, that the Company may, in its
discretion, and immediately prior to any such transaction, cause a new option to
be substituted for this Option or cause this option to be assumed by a successor
entity or a parent or subsidiary of such entity; and such new option shall apply
to all shares issued in addition to or substitution, replacement or modification
of the shares of Common Stock theretofore covered by this Option.
If no provision is made for the assumption of this Option or
the substitution for this Option of a new option as hereinabove provided, then
the Company shall cause written notice to be given to the Optionee of the
proposed transaction not less than thirty (30) days prior to the anticipated
effective date thereof. To the extent the Option remains unexercised as of the
effective date of such transaction, the Option shall, concurrently with the
consummation of such transaction, terminate and become void and of no effect.
7. ADJUSTMENTS. In the event that the outstanding shares of
Common Stock of the Company are hereafter increased or decreased or changed into
or exchanged for a different number or kind of shares or other securities of the
Company by reason of merger, consolidation or reorganization in which the
Company is the surviving corporation or of a recapitalization, stock split,
combination of shares, reclassification, reincorporation, stock dividend (in
excess of 2%), or other change in the capital structure of the Company, (and
provided that the Option is not terminated as a result thereof pursuant to
Section 6 hereof), then the number and class of shares subject to this Option,
and the purchase price per share (but not the total purchase price), shall all
be proportionately adjusted so that, upon exercise of this Option, the Optionee
shall receive the number and class of shares the Optionee would have received
had the Optionee been the holder of the number of shares of Common Stock in the
Company, for which this Option is being exercised, on the date of such change or
increase or
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decrease in the number or class of issued shares of Common Stock of the Company.
Adjustments under this paragraph shall be made by the Board of Directors of the
Company whose determination with respect thereto shall be final and conclusive.
No fractional share shall be issued under this Option or upon any such
adjustment.
8. DETERMINATION OF FAIR MARKET VALUE. For purposes of
determining the fair market value of the Company's Common Stock pursuant to
Section 4 of this Agreement, the fair market value of the Company's Common Stock
shall, if the Common Stock is not listed or admitted to trading on a national
stock exchange, be the average of the closing bid price and asked price of the
Common Stock in the over-the-counter market on the date of exercise or, if the
Company's Common Stock is then listed or admitted to trading on any national
stock exchange, the closing sale price on such day on the principal stock
exchange on which the Company's Common Stock is then listed or admitted to
trading. If no closing bid and asked prices are quoted on such day, or if no
sale takes place on such day on such principal exchange, as the case may be,
then the closing sale price of the Common Stock on such exchange on the next
preceding day on which a sale occurred, or the closing bid and asked prices on
the next preceding day on which such prices were quoted, as the case may be,
shall be the fair market value of the Common Stock.
9. TERMINATION OF EMPLOYMENT OR STATUS AS A DIRECTOR. In the
event that the Optionee shall cease to be an officer or director of the Company
for any reason, including death, retirement, or otherwise, then his Option may
be exercised at any time within sixty (60) days of the date of such cessation,
but in any event no later than the date of expiration of the Option pursuant to
the other provisions of this Agreement, and if not so exercised within such time
shall become void and of no effect at the end of such time.
10. METHOD OF EXERCISING OPTION. Subject to the terms and
conditions of this Agreement, the Option may be exercised by written notice to
the Company, at its principal office in the State of California. Such notice
shall state the election to exercise the Option, the number of shares in respect
of which it is being exercised, and shall be signed by the person so exercising
the Option. Such notice shall also be accompanied by payment for the full
exercise price of such shares. In the event the Option shall be exercised by any
person or persons other than the Optionee in accordance with the terms hereof,
such notice shall also be accompanied by appropriate proof of the right of such
person or persons to exercise the Option. All shares that shall be purchased
upon the exercise of the Option as provided herein shall be fully paid and
nonassessable.
11. REPRESENTATIONS OF OPTIONEE. LEGEND CONDITION. The
Optionee acknowledges that the Option has not been, and the shares of Common
Stock purchasable upon exercise of the Option may not then be, registered under
the Securities Act of 1933 in reliance upon exemptions from such registration
for nonpublic offerings. Accordingly, the Optionee acknowledges and agrees that
the stock certificates representing any shares of Common Stock issued upon
exercise of the Option shall (unless such shares shall hereafter have been
registered under the Securities Act of 1933, which the Company has no obligation
to do) bear and be subject to a legend in substantially the following form:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN RELIANCE
UPON EXEMPTIONS FROM SUCH REGISTRATION FOR NONPUBLIC OFFERINGS.
ACCORDINGLY, NO SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE
SECURITIES OR ANY INTEREST THEREIN MAY BE MADE WITHOUT REGISTRATION
UNDER THE ACT OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
The Optionee hereby represents that all shares of Common Stock
in the Company to be purchased by the Optionee pursuant to the exercise of this
Option will be acquired by Optionee for investment and not with a view to the
distribution thereof except as may be permitted under the Securities Act of 1933
and the rules and regulations thereunder. The Optionee agrees that he or she
shall, upon reasonable request by the Company in connection with any exercise of
the Option, execute and deliver an investment letter in such form as may be
deemed appropriate by the Company.
12. RESERVATION OF SHARES. The Company shall at all times
during the term of the Option reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement, shall pay all original issue and transfer taxes with respect to the
issue and transfer of shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith, and will from time
to time use its best efforts to comply with all laws and regulations, which, in
the opinion of counsel for the Company, shall be applicable thereto.
13. No AGREEMENT TO RETAIN AS EMPLOYEE OR DIRECTOR. Nothing in
this Agreement shall be construed to constitute or to be evidence of any
agreement or understanding, express or implied, on the part of the Company or
any subsidiary of the Company, to retain the Optionee as an employee or director
of the Company or any subsidiary.
14. TAX WITHHOLDING. The Company shall have the right, in
connection with any exercise of this Option, to deduct from the Optionee's
compensation, or require the Optionee to remit to the Company, an amount
sufficient to satisfy all federal, state and local tax withholding requirements.
15. GENERAL PROVISIONS. Notwithstanding any other provisions
of this Agreement, the Company shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock upon the exercise of this
Option prior to fulfillment of all of the following conditions:
(a) The listing or approval for listing upon notice of
issuance, of such shares on any securities exchange as may at the time be the
market for the Company's Common Stock;
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(b) Any registration or other qualification of such shares
under any state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Board of Directors of the
Company shall, in its absolute discretion upon the advise of counsel, deem
necessary or advisable; and
(c) The obtaining of any other consent, approval or permit
from any state or federal governmental agency which the Board of Directors of
the Company shall, in its absolute discretion upon the advice of counsel,
determine to be necessary or advisable.
The Company shall diligently endeavor to obtain fulfillment of
all the foregoing conditions.
16. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto and supersedes any prior written or oral
agreements between the parties concerning the subject matter contained herein.
There are no representations, agreements, arrangements or understandings, oral
or written, between the parties hereto, relating to the subject matter contained
in this Agreement, which are not fully expressed herein.
17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but such
counterparts, when taken together, shall constitute but one and the same
agreement.
18. NOTICES. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal
delivery, or, if mailed, 48 hours after deposit with the United States Postal
Service for mailing via registered or certified mail, addressed to the Company
at its then principal executive offices, or to the Optionee at the address set
forth below his or her signature hereto, or at such other address as such
parties may hereafter designate by written notice to the other party.
IN WITNESS WHEREOF, the Company has caused this Stock Option
Agreement to be duly executed by its officer, thereunto duly authorized, and the
Optionee has hereunto set his or her hand, all as of the day and year first
above written.
GENERAL AUTOMATION, INC. Optionee
A Delaware Corporation
By: /s/ XXXX X. XXXXXXXX /s/ XXXXXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxx (Signature)
Its: Vice President Finance & CFO 000 Xxxxxx Xxxxx Xxxx. #0000
---------------------------- ----------------------------
Xxxxxx, XX 00000
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(Address)
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