EXHIBIT 10.112
TRIMARK HOLDINGS, INC.
Non-qualified Stock Option Granted Under
The Trimark Holdings, Inc. 1999 Directors' Option Plan
Certificate No. 5
Option granted on January 8, 2000 (the "Date of Grant") by
Trimark Holdings, Inc., a Delaware corporation (the "Company"), to Gordon
Stulberg (the "Optionee"):
SECTION 1. GRANT OF OPTION. The Company grants to the Optionee
a non-qualified option to purchase, on the terms and conditions hereinafter set
forth, 2,000 shares (the "Shares") of the Company's Common Stock, par value
$0.001 per share (the "Stock"), at the option price of $3.5625 per share. This
Option is granted pursuant to the Company's 1999 Directors' Option Plan (the
"Plan"), a copy of which is attached hereto as Annex I. This Option is subject
in its entirety to the provisions of the Plan, all of which are incorporated by
reference herein.
SECTION 2. PERIOD OF OPTION. This Option will expire at the
close of business on JANUARY 8, 2010, ten years from the Date of Grant (the
"Expiration Date"), unless earlier terminated pursuant to Section 5 below.
SECTION 3. RIGHT OF EXERCISE. The Option granted to the
Optionee shall become exercisable in full on the Date of Grant. Once
exercisable, the Option may be exercised at any time prior to its expiration,
cancellation or termination as provided in the Plan. Partial exercise is
permitted from time to time provided that no partial exercise of the Option
shall be for a number of Shares having a purchase price of less than $1,000 or
for a fractional number of Shares.
SECTION 4. EXERCISE OF OPTION.
(a) METHOD OF EXERCISE. This Option shall be exercised by the
delivery to the Company of a written notice signed by the Optionee, which
specifies the number of Shares with respect to which the Option is being
exercised and the date of the proposed exercise. Such notice shall be delivered
to the Company's office as set forth in Section 8, no less than three business
days in advance of the date of the proposed exercise and shall be accompanied by
this Option Certificate. The Optionee may withdraw such notice at any time prior
to the close of business on the proposed date of exercise, in which case this
Option Certificate shall be returned to him or her.
Payment for Shares purchased upon exercise of the Option shall
be made at the time of exercise either in cash, by certified check or bank
cashier's check or, at the option of the Board of Directors of the Company, in
Stock owned by the Optionee and valued at its Fair Market Value (as defined in
the Plan) on the date of exercise, or partly in Stock with the balance in cash
or by
1
EXHIBIT 10.112 (CONTINUED)
certified check or bank cashier's check. Any payment in Stock shall be
effected by its delivery to the Secretary of the Company, endorsed in blank or
accompanied by stock powers executed in blank.
(b) DELIVERY OF STOCK CERTIFICATES UPON EXERCISE. Upon each
exercise of this Option, the Company shall mail or deliver to the Optionee, as
soon as practicable, a stock certificate or certificates representing the Shares
then purchased. Notwithstanding the foregoing, no Option granted under the Plan
may be exercised unless and until the Shares to be issued upon the exercise
thereof have been registered under the Securities Act of 1933 and applicable
state securities laws, or are, in the opinion of counsel to the Company, exempt
from such registration. The Company shall not be under any obligation to
register under applicable federal or state securities laws any Shares to be
issued upon the exercise of an Option granted under the Plan, or to comply with
an appropriate exemption from registration under such laws in order to permit
the exercise of an Option and the issuance and sale of the Shares subject to
such Option. If the Company chooses to comply with such an exemption from
registration, the Shares issued under the Plan may bear an appropriate
restrictive legend restricting the transfer or pledge of the Shares represented
thereby, and the Company may also give appropriate stop-transfer instructions to
the transfer agent to the Company.
Further, the Company (or any subsidiary of the Company) may
take such provisions as it may deem appropriate for the withholding of any taxes
or payment of any taxes which it determines it may be required to withhold or
pay in connection with any Option or the payment of Stock pursuant to an Option.
The obligation of the Company to issue and deliver Shares pursuant to the Option
is conditioned upon the satisfaction of the provisions set forth in this
Section.
SECTION 5. TERMINATION OF OPTION. Except as herein otherwise
stated, the Option, to the extent not theretofore exercised, shall terminate
upon the first to occur of the following:
(a) the expiration of one year after the date on which the
Optionee ceases to be a director of the Company by reason of the Optionee's
death or disability; or
(b) the Expiration Date. Notwithstanding anything in this
Option Certificate to the contrary, in the event that the Optionee ceases to be
a director of the Company prior to the exercise of the Option, otherwise than as
described in (a) above, the Option shall automatically terminate.
SECTION 6. RECLASSIFICATION, CONSOLIDATION OR MERGER.
(a) If the capital stock of the Company shall be subdivided or
combined, whether by reclassification, stock dividend, stock split, reverse
stock split or other similar transaction, then the number of Shares and the
exercise price per Share will be adjusted proportionately.
2
EXHIBIT 10.112 (CONTINUED)
(b) In the case of any capital reorganization or any
reclassification of the capital stock of the Company (except pursuant to a
transaction described in paragraph (a) above (a "Reorganization"), appropriate
adjustment may be made by the Company in the number and class of shares subject
to or relating to Options awarded under the Plan and outstanding at the time of
such Reorganization.
SECTION 7. RIGHTS PRIOR TO EXERCISE OF OPTION. The Option is
non-transferable by the Optionee, except that in the event of the Optionee's
death the Option may be transferred by the Optionee's will or by the laws of
descent and distribution. During the Optionee's lifetime, the Option shall be
exercisable only by the Optionee. The Optionee shall have no rights as a
stockholder with respect to the Shares until exercise of the Option and delivery
to him or her of shares of Stock.
SECTION 8. NOTICES, ETC. Any notice hereunder by the Optionee
shall be given to the Company in writing, and such notice and any payment by the
Optionee hereunder shall be deemed duly given or made only upon receipt thereof
at the Company's office at 4553 Glencoe Avenue, Suite 200, Marina del Rey,
California 90292, or at such other address as the Company may designate by
notice to the Optionee.
Any notice or other communication to the Optionee hereunder
shall be in writing and any such communication and any delivery to the Optionee
hereunder shall be deemed duly given or made if mailed or delivered to the
Optionee at such address as the Optionee may have on file with the Company.
SECTION 9. CONSTRUCTION. The interpretation and construction
of this Option is vested in the Company's Board of Directors, and such
construction thereby shall be final and conclusive.
IN WITNESS WHEREOF, the Company has caused this Option
Certificate to be executed by its proper corporate officer thereunto duly
authorized.
TRIMARK HOLDINGS, INC.
By ________________________________
Name: Jeff Gonzalez
Title: Chief Financial Officer
3