EXHIBIT 10.98
NON-QUALIFIED STOCK OPTION
AGREEMENT FOR CAMI WINIKOFF
NON-QUALIFIED STOCK OPTION AGREEMENT ("Option Agreement") dated as of
the 2nd day of February, 1999 providing for the granting of an option by
Trimark Holdings, Inc., a Delaware corporation (the "Company"), to CAMI
WINIKOFF, an employee of the Company or of a subsidiary (the "Employee").
The Board of Directors of the Company has duly adopted, and the
stockholders of the Company have approved, the 1990 Stock Option and Stock
Appreciation Rights Plan of Trimark Holdings, Inc., as amended from time to
time (the "Plan"), which is incorporated herein by reference. Unless
otherwise expressly stated, all defined terms herein shall have the same
meaning ascribed to them in the Plan. In accordance with Paragraph 2 of the
Plan, the Stock Option Plan Committee of the Board of Directors of the
Company (the "Committee") has determined that the Employee is to be granted
an option under the Plan to buy shares of the Company's common stock, par
value $.001 (the "Shares"), on the terms and subject to the conditions
hereinafter provided.
1. NUMBER OF SHARES, OPTION PRICE. The Company hereby grants to the
Employee a non-qualified option (the "Option"), to purchase 36,000 Shares
(the "Option Shares") at a price per Share (the "Option Price") of $4.50 on
the terms and subject to the conditions set forth herein. The Employee shall
not have any of the rights of a stockholder with respect to the Option Shares
covered hereby unless and until the Employee has paid the Option Price with
respect thereto.
2. PERIOD OF OPTION AND CONDITIONS OF EXERCISE.
a) The term of the Option shall commence on February 2, 1999(the "Date of
Grant") and terminate upon the earlier of February 2, 2009 (the "Expiration
Date") and the time at which the Option is completely terminated pursuant to
Section 3 or Section 4 hereof. Upon the termination of the Option, all
rights of the Employee hereunder and under the Plan shall cease. Employee
understands and agrees that the Option granted to her is intended to comply
with the provisions of Rule 16b-3 under the Securities Exchange Act of 1934,
as amended, and is subject to the express terms thereof and the
interpretations of the Securities and Exchange Commission thereunder.
b) The Option, subject to the following provisions of this Section 2 and to
Section 3, shall become exercisable with respect to 50% of the Shares subject
to such Option on January 13, 2001 and shall become exercisable with respect
to an additional 50% of the Shares on January 13, 2002; PROVIDED, HOWEVER,
that under the circumstances specified in Paragraph 9 of that certain
employment agreement between Employee and Trimark Pictures, Inc. dated as of
February 1, 1999 (the "Employment Agreement") the Option shall become
immediately exercisable to the full extent of the original grant upon a
Change of Control of the Company. For purposes of this Option Agreement and,
as applicable, the Employment Agreement, a "Change of Control" shall mean the
following:
(i) Approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to which
persons who were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more than fifty percent (50%) of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated corporation's then outstanding voting securities; or
(ii) The acquisition (other than from the Company) by any person,
entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 ("Exchange Act"), of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
fifty-one percent (51%) or more of either the then outstanding shares or the
combined voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors, but excluding, for
this purpose, any such acquisition by the Company or any of its subsidiaries,
or any employee benefit plan (or related trust) of the Company or its
subsidiaries, or any corporation with respect to which, following such
acquisition, more than fifty percent (50%) of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by the
individuals and entities who were the beneficial owners of the voting
securities of the Company immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior to
such acquisition, of the then outstanding combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors.
c) The Option may be exercised only to purchase whole Shares, and in
no case may a fraction of a Share be purchased.
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The right of the Employee to purchase Option Shares may be exercised in
whole at any time or in part from time to time after and to the extent
that the Option becomes exercisable and prior to the earlier of the
Expiration Date and, as to any portion of the Option, the time at which
such portion is terminated pursuant to Section 3 or Section 4. No
partial exercise of the Option for less than ten (10) Option Shares is
permissible.
3. TERMINATION OF EMPLOYMENT. Subject to Section 4 hereof, the Option
(whether or not exercisable) shall terminate three (3) months after the
Employee ceases to be a full-time employee of the Company or any of its
subsidiaries; provided, however, that in the event of the Employee's
termination for Cause (as defined below), the Option shall terminate
immediately. Notwithstanding the foregoing provisions and Section 4, no
portion of the Option that is unexercisable as of the date Employee ceases to
be a full-time Employee of the Company or any of its subsidiaries shall
thereafter become exercisable. For purposes of the Option Agreement, "Cause"
means the engaging by the Employee in gross and willful misconduct involving
a substantial and material obligation under an employment agreement between
the Employee and the Company (or subsidiary) or, if no such employment
agreement is in effect, Cause means Employee's negligence or misconduct or
habitual failure or inability to perform his employment duties.
4. DEATH OR PERMANENT DISABILITY OF EMPLOYEE. If the Employee dies or
becomes permanently disabled while the Employee is employed by the Company or
one of its subsidiary corporations (as defined in Section 425(f) of the
Code), the Option shall expire one year after the date of such death or
permanent disability unless by its terms it expires sooner. During such
period after death, such Option may, to the extent that it remained
unexercised (but exercisable by the Employee according to the Option's terms)
on the date of such death, be exercised by the person or persons to whom the
rights under the Option shall pass by the Employee's will or by the laws of
descent and distribution. The term "permanent disability" shall have the
meaning set forth in the Company's disability policy then in effect, which
shall allow Employee to receive disability benefits thereunder. If there is
no disability policy in effect at the date of Employee's potential disability
and Employee is unable to render services for a period of six consecutive
months upon the determination of two physicians Board certified in the field
of disability (in the case of dispute as to permanent disability), Employee
shall be deemed to be permanently disabled.
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5. NON-TRANSFERABILITY OF OPTION. The Option and this Option Agreement
shall not be transferable otherwise than by will or by the laws of descent
and distribution; and the Option may be exercised, during the lifetime of the
Employee, only by the Employee, regardless of any community property interest
therein of the spouse of the Employee, or such spouse's successors in
interest. If the spouse of the Employee shall have acquired a community
property interest in the Option, the Employee, or the Employee's permitted
successors in interest, may exercise the Option on behalf of the spouse of
the Employee or such spouse's successors in interest. More particularly, but
without limiting the generality of the foregoing, the Option may not be
assigned, transferred (except as provided above), 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 shall be null and void and without effect.
6. EXERCISE OF OPTION. The Option shall be exercised as specified in
Paragraph 6 of the Plan.
7. WITHHOLDING TAX. Upon the exercise of the Option, the Company shall
have the right to require the Employee, and such Employee agrees, to pay the
Company the amount of any taxes which the Company may be required to withhold
with respect thereto and the Company shall not be obligated to issue
certificates representing the Shares to be acquired through the exercise of
such Options if the Employee fails to provide the Company with adequate
assurance that the Employee will pay such amounts to the Company as herein
required. Such withholding tax may be paid in accordance with the provisions
of Paragraph 9 of the Plan.
8. HOLDING OF STOCK AFTER EXERCISE OF OPTION. By accepting the Option,
Employee represents and agrees, for the Employee and the Employee's permitted
transferees, that none of the Option Shares acquired upon exercise of the
Option will be acquired with a view to any sale, transfer or distribution of
said shares in violation of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder, and
the person entitled to exercise the same shall furnish evidence satisfactory
to the Company (including a written and signed representation) to that effect
in form and substance satisfactory to the Company, including an
indemnification of the Company in the event of any violation of the
Securities Act by such person.
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a) Employee acknowledges that in the event of the exercise of this Option,
unless the Option Shares received upon such exercise shall have been
registered under an effective registration statement under the Securities
Act, such shares will constitute "restricted securities," as defined in Rule
144 promulgated under such Act, and agrees that such shares (a) may not be
sold except in compliance with the applicable provisions of such Act and the
rules and regulations promulgated thereunder, and (b) have been acquired for
investment purposes, and not with a view to distribution. The Company may
issue stop-transfer restrictions to its transfer agent with respect to the
Option Shares. The certificate or certificate representing the Option Shares
may in the discretion of the Committee bear the following legend:
"No sale, offer to sell or transfer of the shares represented by this
certificate shall be made unless a registration statement under the
Securities Act of 1933, as amended, with respect to such shares is then in
effect or an exemption from the registration requirements of such Act is then
in effect applicable to such shares."
9. NOTICES. Any notice required or permitted under this Option Agreement
shall be deemed given when delivered personally, or when deposited in a
United States Post Office as registered mail, postage prepaid, addressed, as
appropriate, either to the Employee at his or her address set forth below or
such other address as he or she may designate in writing to the Company, or
to Trimark Holdings, Inc., 2644 30th Street, Santa Monica, California
90405-3009, Attention: Secretary or such other address(es) as the Company may
designate in writing to the Employee.
10. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Company to enforce
at any time any provision of this Option Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
11. GOVERNING LAW. The Option Agreement shall be governed by and construed
according to the laws of the State of Delaware.
12. ADJUSTMENTS UPON CERTAIN CHANGES. In the event of a transaction
specified in Paragraph 15.1 of the Plan, the Board of Directors or the
Committee shall, in order to prevent the dilution or enlargement of rights
under this Option Agreement, make such adjustments in the number and type of
Option Shares subject to the Option and the Option Price as may be determined
to be appropriate and equitable. Adjustments made by the Board of Directors
or
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Committee shall be final, binding and conclusive. No fractional shares of
stock will be issued on any such adjustment.
13. TERMINATION. Upon the dissolution or liquidation of the Company, or
upon a reorganization, merger or consolidation of the Company with one or
more corporations as a result of which the Company is not the surviving
corporation, or upon the sale of substantially all the property or more than
eighty percent of the then outstanding stock of the Company to another
corporation, the Option granted hereunder shall terminate.
14. PROVISIONS OF THE PLAN. The Option provided for herein is granted
pursuant to the Plan, and said Option and this Option Agreement are in all
respects governed by the Plan and subject to all of the terms and provisions
thereof, whether such terms and provisions are incorporated in this Option
Agreement solely by reference or are expressly cited herein. A copy of the
Plan has been furnished to the Employee, and the Employee hereby acknowledges
receipt thereof.
IN WITNESS WHEREOF, the Company has executed this Option Agreement in
duplicate on the day and year first above written.
TRIMARK HOLDINGS, INC.
BY: ________________________
TITLE
The undersigned hereby accepts, and agrees to, all terms and provisions of
the foregoing Option Agreement.
/s/ Cami Winikoff
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CAMI WINIKOFF
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[ADDRESS]
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