Exhibit 10.69
TRIMARK HOLDINGS, INC.
Non-qualified Stock Option Granted Under
The Trimark Holdings, Inc. Directors' Stock Option Plan
Certificate No. 9
Option granted on January 14, 1997 (the "Date of Grant") by Trimark
Holdings, Inc., a Delaware corporation (the "Company"), to Matthew H. Saver (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 $5.25 per share. This
Option is granted pursuant to the Company's Directors' Stock 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 14, 2007, 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
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 three months after the date on which the Optionee
ceases to be a director of the Company by reason of such Optionee's retirement;
(b) 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
(c) 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) and (b) above,
the Option shall automatically terminate.
Section 6. Reclassification, Consolidation or Merger.
---------- ------------------------------------------
(c) 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.
(d) 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 2644
30th Street, Santa Monica, California 90405, 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 /s/ James E.Keegan
---------------------------------
Name: James E. Keegan
Title: Senior Vice President
and Chief Financial Officer