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EXHIBIT 4.9
NONSTATUTORY STOCK OPTION AGREEMENT
(1995 Stock Option Plan)
THIS NONSTATUTORY STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into this day of , 199 by and between _______________________________
(the "Optionee") and BOYDS WHEELS, INC., a California corporation (the
"Company").
RECITALS
A. This Company has adopted the 1995 Stock Option Plan (the "Plan")
which provides for the granting of options to officers, directors, employees and
consultants of the Company. The terms of this Agreement are governed solely by
the Plan, a copy of which has been provided to Optionee.
B. The Board has authorized the grant of options to purchase Common
Stock of the Company pursuant to the terms and conditions set forth herein and
in the Plan. This option is not intended to qualify as and will not be treated
as an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
C. Before making any decision concerning the Plan, this Agreement or an
exercise of any option granted hereby, Optionee is advised to read the Plan and
consult with an attorney and a tax advisor. THE UNTIMELY EXERCISE OF THE OPTION
GRANTED HEREBY
AND THE SALE OF STOCK ACQUIRED AS A RESULT OF SUCH EXERCISE MAY CAUSE OPTIONEE
TO INCUR LIABILITIES UNDER THE TAXATION AND SECURITIES LAWS OF WHICH OPTIONEE
MAY BE OTHERWISE UNAWARE WITHOUT SEEKING THE ADVICE OF ADVISORS.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Grant to Optionee.
The Company hereby grants to Optionee, subject to the terms and
conditions of the Plan and subject to the terms and conditions set forth herein,
an option (the "Option") to purchase from the Company all or any part of an
aggregate of _________________________ (________) shares of the Company's Common
Stock ("Common Stock").
2. Exercise of the Option.
(a) Exercise Price. The exercise price of this Option is ___________
($_____) per share. Payment of the exercise price per share is due in full upon
exercise of all or any part of this Option. Optionee may elect, to the extent
permitted by applicable statutes and regulations, to make payment of the
exercise price under one of the following alternatives:
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(i) Payment of the exercise price per share in cash (including
check) at the time of exercise;
(ii) Provided that at the time of exercise the Company's Common
Stock is publicly traded and quoted regularly in the Wall Street
Journal, payment by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company's
reported earnings, and owned free and clear of any liens, claims,
encumbrances or security interests, which Common Stock shall be valued
at its fair market value, which is the per share price of the last sale
of Common Stock on the trading day immediately preceding the date the
Option is exercised (or the closing bid if no sales were reported),
based on the composite transactions in the Common Stock as reported in
The Wall Street Journal (or any successor publication thereto) ("Fair
Market Value");
(iii) Provided that at the time of exercise the Company's Common
Stock is publicly traded and quoted regularly in the Wall Street
Journal, and provided further, that the cashless exercise will not
result in a charge to the Company's earnings, payment by delivery and
surrender of this Option with a Cashless Exercise Notice (in the form
attached hereto as Exhibit B). In the event of a cashless exercise, the
Optionee shall exchange the Option for such number of shares of Common
Stock underlying the Option determined by multiplying the number of
shares by a fraction, the numerator of which shall be the difference
between the Fair Market Value per share of the Common Stock and the
exercise price per share of the Option, the denominator of which shall
be the Fair Market Value per share of the Common Stock;
(iv) To the extent permitted by applicable law, payment by a
combination of the methods of payment permitted by Sections 2(a)(i),
(ii) and (iii) above.
(b) Exercise Notice. In order to exercise this Option, Optionee or any
other person or persons entitled to exercise the Option shall give written
notice to the Secretary of the Company or to such other person as may be
designated by the Company, in the form set forth on Exhibit A or Exhibit B
hereto, specifying the number of shares to be purchased. This notice shall be
accompanied by payment of the exercise price for the shares as provided in
Section 2(a). Optionee shall also deliver such additional documents as the
Company may then require pursuant to the Plan.
(c) Compliance with Securities Laws. Notwithstanding anything to the
contrary contained herein, this Option may not be exercised unless the shares
issuable upon exercise of this Option are then registered under the Act, or, if
such shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act").
(d) Additional Terms and Conditions. By exercising this Option,
Optionee agrees that the Company may require (as a condition to the exercise of
this Option) Optionee to enter an arrangement providing for the payment by
Optionee to the Company of any tax withholding obligation of the Company arising
by reason of (1) the exercise of the Option; (2) the lapse of
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any substantial risk of forfeiture to which the shares are subject at the time
of exercise; or (3) the disposition of shares acquired upon such exercise.
3. Vesting Schedule.
Subject to the limitations contained herein, _____________ (___) of the
shares will vest on ________________, 19__, and _______________ (___) of the
shares will then vest on ____________ of every year thereafter for the next
________ (___) years. Vested installments may be exercised in whole or in part,
and, to the extent not exercised, will accumulate and be exercisable at any time
on or before the termination of the Option; provided however, that this Option
may not be exercised for any number of shares which would require the issuance
of anything other than whole shares. Notwithstanding the above, the vesting of
shares subject to this Option shall accelerate upon the terms and conditions set
forth in Section 1.10 of the Plan.
4. Expiration Date.
The Option shall terminate and expire at 5:00 p.m., California time, on
________________ (which date shall not be more than ten (10) years from the date
this Option is granted), or such earlier time as may be required by the Plan if
Optionee ceases to be employed or retained by the Company or ceases to be a
member of the Board of Directors. In no event may this Option be exercised after
the date on which it terminates. This Option shall terminate prior to the
expiration of its term as follows: ninety days (90) days after the termination
of Optionee's employment with or engagement by the Company or an affiliate for
any reason or for no reason unless:
(i) Disability/Retirement. Such termination is due to Optionee's
permanent and total disability (within the meaning of Section 422(c)(6)
of the Code) or to the retirement of an Optionee who is an employee of
the Company, in which event the Option shall terminate on the earlier
of the termination date set forth above or twelve (12) months following
such termination; or
(ii) Death. Such termination is due to Optionee's death, in which
event the Option shall terminate on the earlier of the termination date
set forth above or twelve (12) months after Optionee's death; or
(iii) Removal for Cause. Such termination is due Optionee's
commission of fraud, theft or embezzlement against the Company or a
subsidiary, affiliated entity or customer of the company, or for
conflict of interest (other than legitimate competition), in which
event the Option shall terminate at the time Optionee's employment or
engagement is terminated.
(iv) Section 16(b) Liability. Exercise of the Option within ninety
(90) days after the termination of Optionee's employment with or
engagement by the Company or with an affiliate would result in
liability under section 16(b) of the Securities Exchange Act of 1934,
as amended, in which case the Option will terminate on the earlier of
(i) the tenth (10th) day after the last date upon which exercise would
result in such liability
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or (ii) six (6) months and ten (10) days after the termination of
Optionee's employment with or engagement by the Company or an
affiliate.
Notwithstanding the foregoing, this Option may be exercised following
termination of Optionee's employment or engagement by the Company or an
affiliate only as to that number of shares as to which it was exercisable on the
date of such termination under the provisions of Section 3 of this Option.
5. Nontransferable.
This Option is not transferable, except by will or by the laws of
descent and distribution, and is exercisable during Optionee's life only by
Optionee. Any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of, or to subject to execution, attachment or similar process, the
Option, or any right thereunder, contrary to the provisions hereof, shall be
void and ineffective, shall give no right to the purported transferee, and
shall, at the sole discretion of the Committee, result in forfeiture of the
Option with respect to the shares involved in such attempt.
6. No Right to Continued Employment or Engagement by the Company.
This Agreement is not an employment contract and nothing in this Option
shall be deemed to create in any way whatsoever any obligation on Optionee's
part to continue in the employ of the Company, or of the Company or an affiliate
to continue Optionee's employment with the Company or an affiliate. In the event
that this Option is granted to Optionee in connection with the performance of
services as a consultant or director, references to employment, employee and
similar terms shall be deemed to include the performance of services as a
consultant or a director, as the case may be; provided however, that no rights
as an employee shall arise by reason of the use of such terms.
7. No Rights as a Shareholder.
The holder of this Option shall not have any of the rights of a
shareholder with respect to the shares subject to the Option until such holder
shall have exercised the option and paid the exercise price.
8. Notices.
Any notices provided for in this Option or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or five (5) days
after deposit in the United States mail, postage prepaid, certified mail
addressed to Optionee or the Company at the address specified below or at such
other address as the parties may hereafter designate by written notice:
Optionee: ____________________________________________
____________________________________________
____________________________________________
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The Company: Boyds Wheels, Inc.
8380 Cerritos Avenue
Stanton, California 90680
Attn: Corporate Secretary
9. Subject to the Plan.
This Option is subject to all the provisions of the Plan, a copy of
which has been provided to Optionee, and its provisions are hereby made a part
of this Option. Optionee acknowledges receipt of a copy of the Plan. This Option
is further subject to all interpretations, amendments, rules and regulations
which may from time to time be promulgated and adopted pursuant to the Plan. In
the event of any conflict between the provisions of this Option and those of the
Plan, the provisions of the Plan shall control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
"Company" BOYDS WHEELS, INC.
a California corporation
By:
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Title:
---------------------------------
"Optionee"
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Social Security No.:
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EXHIBIT A
EXERCISE NOTICE
Boyds Wheels, Inc.
8380 Cerritos Avenue
Stanton, California 90680
Attention: Corporate Secretary
Re: Exercise of Stock Option
Ladies and Gentlemen:
Pursuant to Section 2 of that certain Nonqualified Stock Option
Agreement (the "Agreement") between the undersigned and Boyds Wheels, Inc., a
California corporation (the "Company"), the undersigned hereby elects to
exercise the option granted thereby to purchase __________ shares of Common
Stock of the Company at a price of $______ per share. Accompanying this Notice
is the payment in full for such shares as permitted by the terms of the 1995
Stock Option Plan, which Plan is specifically made a part of this Agreement and
has been read and understood by the undersigned.
The undersigned represents and warrants to the Company that the
undersigned is acquiring the shares for investment only and not with a view to
distribution or resale.
Dated:
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Signature
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Print Name
-------------------------------
Please print here the exact name desired to
be on the stock certificate and the records of
the Company.
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EXHIBIT B
CASHLESS EXERCISE NOTICE
Boyds Wheels, Inc.
8380 Cerritos Avenue
Stanton, California 90680
Attention: Corporate Secretary
Re: Cashless Exercise of Stock Option
Ladies and Gentlemen:
Pursuant to Section 2(a)(iii) of that certain Nonqualified Stock Option
Agreement (the "Agreement") between the undersigned and Boyds Wheels, Inc., a
California corporation (the "Company"), the undersigned hereby irrevocably
elects to exchange the Option granted thereby for _______ shares of Common Stock
of the Company, as permitted by the terms of the 1995 Stock Option Plan, which
Plan is specifically made a part of this Agreement and has been read and
understood by the undersigned.
If the number of shares referenced in this Cashless Exercise Notice
shall not be all of the shares exchangeable or purchasable under the Option, a
new Agreement shall be issued in the name of the undersigned for the balance
remaining of the shares purchasable thereunder rounded up to the next higher
number of shares.
The undersigned represents and warrants to the Company that the
undersigned is acquiring the shares for investment only and not with a view to
distribution or resale.
Dated:
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Signature
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Print Name
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Please print here the exact name desired to
be on the stock certificate and the records of
the Company.
NOTE: This form may only be used if the cashless exercise will not result
in a charge to the Company's reported earnings.
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