EXHIBIT 4.4
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (hereinafter referred to as "AGREEMENT") is
made by and between DAISYTEK INTERNATIONAL CORPORATION, a Delaware corporation
(hereinafter referred to as "COMPANY"), and the individual whose name and
signature appear on the signature page hereof (hereinafter referred to as
"HOLDER"):
WHEREAS, the Company wishes to evidence the issuance to the
Holder of the non-qualified stock options set forth herein, subject to, and in
accordance with, the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
I. DEFINITIONS
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below unless the context clearly indicates to
the contrary. The masculine pronoun shall include the feminine and neuter and
the singular shall include the plural, where the context so indicates.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Committee" shall mean the Committee of the Board, appointed
as provided in Section 5.1.
"Common Stock" shall mean the Company's common stock, $.01 par
value per share.
"Company" shall mean Daisytek International Corporation, a
Delaware corporation. In addition, "Company" shall mean any corporation
assuming, or issuing new employee stock options in substitution for, Options
outstanding under this Agreement, in a transaction to which Section 424(a) of
the Code applies.
"Director" shall mean a member of the Board.
"Employee" shall mean any employee (as defined in accordance
with the regulations and revenue rulings then applicable under Section 3401(c)
of the Code) of the Company, or of any corporation which is then a Parent
Corporation or a Subsidiary, whether such employee is so employed at the time
this Agreement is executed. To the extent not included in the foregoing,
"Employee" shall mean any officer, director, employee or consultant of the
Company, or any entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company, as the Committee shall from time to time select in its sole discretion.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" shall mean (i) the closing price of a
share of the Company's Common Stock on the principal exchange on which shares of
the Company's Common Stock are then trading, if any, on the date previous to
such date, or, if shares were not traded on the day previous to such date, then
on the next preceding trading day during which a sale occurred; or (ii) if such
Common Stock is not traded on any exchange but is quoted on NASDAQ or a
successor quotation system, (1) the last sales price (if the Company's Common
Stock is then listed as a National Market Issue under the NASD National Market
System) or (2) the mean between the closing representative bid and asked prices
(in all other cases) for the Company's Common Stock, in each case, as of the day
previous to such date as reported by
NASDAQ or such successor quotation system; or (iii) if such Common Stock is not
publicly trade on an exchange and not quoted on NASDAQ or a successor quotation
system, the mean between the closing bid and asked prices for the Company's
Common Stock, on the day previous to such date, as determined in good faith by
the Committee; or (iv) if the Company's Common Stock is not publicly traded, the
fair market value established by the Committee acting in good faith.
"Non-Qualified Stock Option" shall mean an option that is not
treated as an incentive stock option as defined in Section 422 of the Code.
"Officer" shall mean an officer of the Company, as defined in
Rule 16a-1(f) under the Exchange Act, as such Rule may be amended in the future.
"Option" shall mean an option to purchase Common Stock of the
Company, granted under this Agreement.
"Parent Corporation" shall mean any corporation in an unbroken
chain of corporations ending with the Company if each of the corporations other
than the Company then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
"QDRO" shall have the meaning provided in Section 5.3.
"Rule 16b-3" shall mean that certain Rule 16b-3 under the
Exchange Act, as such Rule may be amended in the future.
"Secretary" shall mean the Secretary of the Company.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Subsidiary" shall mean any corporation in an unbroken chain
of corporations beginning with the Company if each of the corporations other
than the last corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one or the
other corporations in such chain.
"Termination of Employment" shall have the meaning provided in
Section 3.4.
II. GRANT OF OPTION
2.1. GRANT OF OPTION. For good and valuable consideration,
effective as of XXXXXXXXX (the "DATE OF GRANT"), the Company hereby grants to
the Holder the Option to purchase any part or all of the number of shares of the
Company's Common Stock set forth on the signature page hereof, subject to and
upon the terms and conditions set forth in this Agreement. This Option is a
Non-Qualified Stock Option.
2.2. PURCHASE PRICE. The purchase price of the shares of
Common Stock covered by the Option shall be XXX Dollars and XXXXX cents ($XXX)
per share without commission or other charge; provided, however, such purchase
price per share of Common Stock shall not be less than 100% of the Fair Market
Value of such share on the Date of Grant.
2.3. CONSIDERATION TO COMPANY. In consideration of the
granting of this Option by the Company, the Holder agrees to render faithful and
efficient services to the Company, a Parent Corporation or a Subsidiary, with
such duties and responsibilities as the Company shall from time to time
prescribe. Nothing in this Agreement shall confer upon the Holder any right to
continue in the employ of the Company, any Parent Corporation or any Subsidiary
or
shall interfere with or restrict in any way the rights of the Company, its
Parent Corporation and its Subsidiaries, which are hereby expressly reserved, to
discharge the Holder at any time for any reason whatsoever, with or without
cause.
2.4. ADJUSTMENTS IN OPTION. In the event that the outstanding
shares of Common Stock subject to the Option are changed into or exchanged for a
different number or kind of shares of the Company or other securities of the
Company by reason of merger, consolidation, recapitalization, reclassification,
stock split, reverse stock split, spin-off, stock dividend or combination of
shares or other recapitalization or reorganization, the Committee shall make an
appropriate and equitable adjustment in the number and kind of shares as to
which the Option, or portions thereof then unexercised, shall be exercisable.
Such adjustment in the Option shall be made without change in the total price
applicable to the unexercised portion of the Option (except for any change in
the aggregate price resulting from rounding-off of share quantities or prices)
and with any necessary corresponding adjustment in the Option price per share
Any such adjustment made by the Committee shall be final and binding upon the
Holder, the Company and all other interested persons.
III. PERIOD OF EXERCISABILITY
3.1. COMMENCEMENT OF EXERCISABILITY.
(a) Except as otherwise set forth in any authorized
appendix to the signature page hereto, the Option shall vest quarterly
over a three-year period and become exercisable as follows:
(i) until one year from the Date of Grant, the
Option shall not be vested and shall not be exercisable as to
any of the Shares subject hereto;
(ii) on the 91st day following one year from the
Date of Grant, the Option shall be fully vested and
exercisable as to one-eighth (12.5%) of the original Shares
subject hereto;
(iii) on each 91st day thereafter, the Option
shall be fully vested and exercisable as to an additional
one-eighth (12.5%) of the original Shares subject hereto; and
(iv) on the date which is three years from the
Date of Grant, the Options shall be fully vested and
exercisable as to all of the original Shares subject hereto.
(b) Except as otherwise set forth in Section 3.1(c), no
portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
(c) Notwithstanding anything contained herein to the
contrary, the Committee shall have the right to accelerate the vesting
of this Option, or any portion thereof, at any time and from time to
time, and upon such terms and conditions as it shall determine in its
sole discretion.
3.2. DURATION OF EXERCISABILITY. The installments provided for
in Section 3.1 are cumulative. Each such installment which becomes exercisable
pursuant to Section 3.1 shall remain exercisable until it becomes unexercisable
under Section 3.3.
3.3. EXPIRATION OF OPTION. Subject to the terms and provisions
of this Agreement, the Option may not be exercised to any extent by anyone after
the first to occur of the following events:
(a) The expiration of ten (10) years from the Date of
Grant;
(b) The date that is 30 days after the Holder's
Termination of Employment for any reason, other than death or
disability (within the meaning of Section 22(e)(3) of the Code), unless
the Committee otherwise elects to permit the exercise of such Option
for a period of time thereafter; provided, however (a) such period of
time shall end no later than ten years from the Date of Grant, and (b)
the Committee may make such elections in such manner as it deems
appropriate, which may be non-uniform and selective, and based upon
such factors as it deems relevant;
(c) With respect to an Option held by a Holder who is
disabled (within the meaning of Section 22(e)(3) of the Code), the
expiration of one year from the date of the Holder's Termination of
Employment for any reason other than death, unless the Holder dies
within said one-year period;
(d) The expiration of one year from the date of the
Holder's death with respect to all Options held by such Holder; and
(e) With respect to all Options, and notwithstanding
any other provision contained herein, the date of the Holder's
Termination of Employment in the event such Termination is for "cause".
3.4. TERMINATION OF EMPLOYMENT. "Termination of Employment"
shall mean the time when a Holder ceases to be an Employee for any reason, with
or without cause, including, but not by way of limitation, by resignation,
discharge, death or retirement, but excluding terminations where there is a
simultaneous reemployment by the Company, a Parent Corporation, a Subsidiary or
any entity which, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the Company. The
Committee, in its absolute discretion shall determine all matters and questions
relating to Termination of Employment, including, but not by way of limitation,
the question of whether a Termination of Employment is for "cause" and what
actions constitute "cause", and all questions of whether particular leaves of
absence constitute Termination of Employment.
3.5. MERGER, CONSOLIDATION, ACQUISITION, LIQUIDATION OR
DISSOLUTION. In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets or eighty percent (80%) or more
of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, the Committee may (but shall not be required to), in
its absolute discretion and upon such terms and conditions as it deems
appropriate, provide by resolution, adopted prior to such event, that:
(a) After the effective date of such event, this Option
shall not be exercisable, and/or
(b) At some time prior to the effective date of such
event, this Option shall be exercisable as to all the shares covered
hereby, notwithstanding that this Option may not yet have become fully
exercisable under Section 3.1(a); provided, however, that this
acceleration of exercisability shall not take place if:
(i) This Option becomes unexercisable under
Section 3.3 prior to said effective date; or
(ii) In connection with such an event, provision
is made for an assumption of this Option or a substitution
therefor of a new option by an employer corporation or a
parent or subsidiary of such corporation, so that such
assumption or substitution complies with the provisions of
Section 424(a) of the Code.
The Committee may make such determinations and adopt such
rules and conditions as it, in its absolute discretion, deems appropriate in
connection with such acceleration of exercisability, including, but not by way
of limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated
corporate transaction, and determinations regarding whether provisions for
assumption or substitution have been made as defined in clause (ii) above.
IV. EXERCISE OF OPTION
4.1. PERSON ELIGIBLE TO EXERCISE. During the lifetime of the
Holder, only Holders or any transferee pursuant to a QDRO may exercise the
Option or any portion thereof. After the death of the Holder, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by Holder's personal
representative or by any person empowered to do so under the Holder's will or
under the then applicable laws of descent and distribution. Notwithstanding the
foregoing, the Committee may, as provided in Section 5.3, in its sole
discretion, permit the transfer of the Option in whole or in part, and the
exercise thereof by any transferee thereof.
4.2. PARTIAL EXERCISE. Any exercisable portion of the Option
or the entire Option, if then wholly exercisable, may be exercised in whole or
in part at any time prior to the time when the Option or portion thereof becomes
unexercisable under Section 3.3; provided, however, that each partial exercise
shall be for not less than one-hundred (100) shares (or the minimum installment
set forth in Section 3.1, if a smaller number of shares) and shall be for whole
shares only.
4.3. MANNER OF EXERCISE. The Option, or any exercisable
portion thereof, may be exercised solely by delivery to the Secretary or his
office of all of the following (except as otherwise waived by such officer)
prior to the time when the Option or such portion becomes unexercisable under
Section 3.3:
(a) An executed exercise agreement in the form
attached hereto as Exhibit A (the "EXERCISE AGREEMENT") signed by the
Holder or the other person then entitled to exercise the Option or
portion, stating that the Option or portion is thereby exercised, such
Exercise Agreement complying with all applicable rules established by
the Committee; and
(b) (i) Full payment (in cash or by check) for the
shares with respect to which such Option or portion is exercised; or
(ii) With the consent of the Committee, by
delivery to the Company of other shares of Common Stock of the Company
that (A) in the case of shares acquired upon exercise of the Option or
upon the exercise of an option under any stock option plan of the
Company, have been owned by the Holder for more than six months on the
date of surrender or such other period as may be required to avoid a
charge to the Company's earnings for financial reporting purposes, and
(B) have a Fair Market Value on the exercise date equal to the
aggregate exercise price of the shares as to which said Option shall be
exercised. THE USE OF SHARES OF THE COMPANY'S COMMON STOCK TO PAY THE
OPTION PRICE MAY HAVE INCOME TAX CONSEQUENCES FOR THE HOLDER; or
(iii) With the consent of the Committee, a
recourse promissory note duly executed and delivered by the Holder in
the principal amount of the exercise price thereof, or any portion
thereof, in each case upon such terms and conditions (including without
limitation, terms regarding rates of interest, payment schedule,
collateral or other security) as the Committee may establish in its
sole and absolute discretion; or
(iv) With the consent of the Committee, any
combination of the consideration provided in the foregoing subsections
(i), (ii) and (iii); and
(c) A bona fide written representation and agreement,
in a form satisfactory to the Committee, signed by the Holder or other
person then entitled to exercise such Option or portion, stating that
the shares of stock are being acquired for Holder's own account, for
investment and without any present intention of distributing or
reselling said shares or any of them except as may be permitted under
the Securities Act and then applicable rules and regulations
thereunder, and that the Holder or other person then entitled to
exercise such Option or portion will indemnify the Company against, and
hold it free and harmless from, any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by
such person is contrary to the representation and agreement referred to
above. The Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to insure the observance and
performance of such representation and agreement and to effect
compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel acceptable
to it to the effect that any subsequent transfer of shares acquired
upon exercise of an Option does not violate the Securities Act, and may
issue stop-transfer orders covering such shares. Share certificates
evidencing stock issued on exercise of this Option shall bear an
appropriate legend referring to the provisions of this subsection (c)
and the agreements herein. The written representation and agreement
referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Securities Act, and such
registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; provided,
however, with the consent of the Committee, shares of the Company's
Common Stock issuable to the Holder upon exercise of the Option, or any
of the consideration provided in the foregoing subsections (i), (ii)
and (iii) of the preceding paragraph (b), or any combination thereof
may be used to satisfy all or part of such payment (THE USE OF SHARES
OF THE COMPANY'S COMMON STOCK TO SATISFY THE HOLDER'S WITHHOLDING
OBLIGATION MAY HAVE INCOME TAX CONSEQUENCES FOR THE HOLDER); and
(e) In the event the Option or portion shall be
exercised pursuant to Section 3.1 by any person or persons other than
the Holder, appropriate proof of the right of such person or persons to
exercise the Option.
Notwithstanding anything contained herein to the
contrary, the Committee may, in its sole discretion, limit or restrict the use
of Shares of the Company's Common Stock issuable to the Holder upon exercise of
the Option to satisfy the exercise price or the tax withholding consequences of
such exercise (i) to such periods following the date of release of the quarterly
or annual summary statement of sales and earnings of the Company and/or to such
other periods as the Committee shall, in its sole discretion, deem appropriate
and (ii) in accordance with such other rules and regulations as the Committee
may determine to be necessary or appropriate from time to time.
4.4. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The shares
of stock deliverable upon the exercise of the Option, or any portion thereof,
may be either previously authorized but unissued shares or issued shares which
have then been reacquired by the Company. Such shares shall be fully paid and
nonassessable. The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the exercise of
the Option or portion thereof prior to fulfillment of all of the following
conditions (except as otherwise waived by the Committee):
(a) The admission of such shares to listing on all
stock exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body which the Committee shall, in
its absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance
from any state or federal governmental agency which the Committee
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time
following the exercise of the Option as the Committee may from time to
time establish for reasons of administrative convenience.
4.5. RIGHTS AS A SHAREHOLDER. The holder of the Option shall
not be, nor have any of the rights or privileges of, a shareholder of the
Company in respect of any shares purchasable upon the exercise of any part of
the Option unless and until certificates representing such shares shall have
been issued by the Company to such holder.
V. OTHER PROVISIONS
5.1. ADMINISTRATION.
(a) The Committee shall have the power to interpret
this Agreement and to adopt such rules for the administration,
interpretation and application of this Agreement as are consistent
therewith and to interpret or revoke any such rules. All actions taken
and all interpretations and determinations made by the Committee in
good faith shall be final and binding upon the Holder, the Company and
all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made
in good faith with respect to this Agreement or the Option.
(b) The "Committee" shall consist of two or more
Directors, appointed by and holding office at the pleasure of the
Board. The Board may limit the members of the Committee to directors
who are both "non-employee directors" as defined in Rule 16b-3, and
"outside directors", as defined in Section 162(m) of the Code. Subject
to the limitations set forth in the preceding sentence, the powers of
the Committee may be exercised by the Compensation Committee of the
Board. Appointment of Committee members shall be effective upon
acceptance of appointment. Committee members may be removed by the
Board at any time and may resign at any time. Vacancies in the
Committee shall be filled by the Board. The Board reserves the right to
serve as the Committee if it so elects, and, in which event, the term
"Committee" shall mean the Board. The Committee shall act by a majority
of its members in office. The Committee may act either by vote at a
meeting or by a memorandum or other written instrument signed by a
majority of the Committee. Members of the Committee shall receive such
compensation for their services as members as may be determined by the
Board. All expenses and liabilities incurred by members of the
Committee in connection with the administration of the Agreement shall
be borne by the Company. The Committee may employ attorneys,
consultants, accountants, appraisers, brokers or other persons. The
Committee, the Company and its Officers and Directors shall be entitled
to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by
the Committee in good faith shall be final and binding upon the Holder,
the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Agreement or the
Options, and all members of the Committee shall be fully protected by
the Company in respect to any such action, determination or
interpretation. The Committee shall have the unrestricted right to make
non-uniform decisions and determinations in all matters regarding the
Agreement and all Options issued hereunder.
5.2. TAX CONSEQUENCES. The grant and/or exercise of the Option
will have federal and state income tax consequences, including a requirement
that the Company file certain information returns with the Internal Revenue
Service. THE HOLDER SHOULD CONSULT A TAX ADVISER UPON THE GRANT OF THE OPTION
AND
BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES, PARTICULARLY WITH
RESPECT TO HIS STATE'S TAX LAWS.
5.3. OPTION NOT TRANSFERABLE. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Holder or his successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
of any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
however, that this Section 5.3 shall not prevent transfers by will or by the
applicable laws of descent and distribution or pursuant to a qualified domestic
relations order, as defined by the Code or by Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules thereunder (a "QDRO").
Notwithstanding the foregoing, the Committee may, in its discretion, permit the
holder of this Option to transfer such Option, or any portion thereof, to such
holder's spouse, lineal descendent or trust established for the benefit thereof
or any other person or entity.
5.4. SHARES TO BE RESERVED. The Company shall at all times
during the term of the Option reserve and keep available such number of shares
of stock as will be sufficient to satisfy the requirements of this Agreement.
5.5. CONFORMITY TO SECURITIES LAWS. The Agreement is intended
to conform to the extent necessary with all provisions of the Securities Act and
the Exchange Act and any and all regulations and rules promulgated by the
Securities and Exchange Commission thereunder, including without limitation Rule
16b-3. Notwithstanding anything herein to the contrary, the Agreement shall be
administered, and Options shall be granted and may be exercised, only in such a
manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Agreement and Options granted hereunder shall
be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
5.6. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons lawfully
claiming under Holder.
5.7. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes in its entirety all prior undertakings and
agreements of the Company and Holder with respect to the subject matter hereof,
and may not be modified adversely to the Holder's interest except by means of a
writing signed by the Company and Holder. This Agreement is governed by Delaware
law except for that body of law pertaining to conflict of laws.
5.8. NOTICES. Any notice to be given under the terms of this
Agreement to the Company shall be addressed to the Company in care of its
Secretary, and any notice to be given to the Holder shall be addressed to him or
her at the address given beneath his or her signature hereto. By a notice given
pursuant to this Section 5.8, either party may hereafter designate a different
address for notices to be given to such party. Any notice which is required to
be given to the Holder shall, if the Holder is then deceased, be given to the
Holder's personal representative if such representative has previously informed
the Company of his status and address by written notice under this Section 5.8.
Any notice shall be deemed duly given upon receipt and shall be delivered by
hand, reputable overnight courier or deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service.
5.9. TITLES. Titles are provided herein for convenience only
and are not to serve as a basis for interpretation or construction of this
Agreement.
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STOCK OPTION SIGNATURE PAGE
In Witness Whereof, effective as of XXXXXXX, the Company and
the undersigned Holder have executed and delivered this Option.
Name of Holder: XXXXXXXXXXXXX
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Number of Option Shares: XXXX
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These are Non-Qualified Stock Options
Option Certificate No.:
HOLDER: DAISYTEK INTERNATIONAL CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: By:
Signature of Holder ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
HOLDER'S NAME AND ADDRESS:
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EXHIBIT A TO NON-QUALIFIED STOCK OPTION AGREEMENT
DAISYTEK INTERNATIONAL CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
EXERCISE AGREEMENT
Daisytek International Corporation
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▇▇▇▇▇ ▇▇▇
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Attention: Secretary
1. EXERCISE OF OPTION. Effective as of today, XXXXXXXX, 20XX, the
undersigned ("PURCHASER") hereby elects, pursuant to this Exercise Agreement
(this "EXERCISE AGREEMENT"), to exercise XXXXXX options (the "OPTIONS") to
purchase XXXXX shares (the "SHARES") of the Common Stock of Daisytek
International Corporation (the "COMPANY") under and pursuant to the
Non-Qualified Stock Option Agreement dated XXXXXXXX, 20XX (the "OPTION
AGREEMENT"). The purchase price for the Shares shall be $ XXXXXX, as specified
in the Option Agreement. Unless otherwise defined herein, all defined terms used
herein shall have the meanings set forth in the Option Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company the
full purchase price for the Shares of the Company. THE USE OF SHARES OF STOCK
ACQUIRED OR TO BE ACQUIRED FOR EXERCISED SHARES MAY HAVE INCOME TAX CONSEQUENCES
FOR THE OPTIONEE.
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that Purchaser
has received, read and understood the Option Agreement and agrees to abide by
and be bound by its terms and conditions.
4. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with any
registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Purchaser will not sell or otherwise dispose of any Shares without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not to exceed 180 days) after the effective date of such
registration requested by such managing underwriters and subject to all
restrictions as the Company or the underwriters may specify.
5. RIGHTS AS SHAREHOLDER. The Purchaser shall not be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any Shares
for which such Option is exercised including, but not limited to, rights to vote
or to receive dividends unless and until the Purchaser has satisfied all
requirements for exercise of the Option pursuant to its terms, the certificates
evidencing such Shares have been issued and the Purchaser has become a record
holder of such Shares. A share certificate for the number of Shares so acquired
shall be issued to the Optionee as soon as practicable after exercise of the
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date all the conditions set forth above are
satisfied, except as provided in Section 2.4 of the Option Agreement.
6. TAX CONSULTATION. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
7. ENTIRE AGREEMENT. The Option Agreement is incorporated herein by
reference. This Exercise Agreement and the Option Agreement constitute the
entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and Purchaser with respect to the subject matter hereof, and this Exercise
Agreement may not be amended except by means of a writing signed by the Company
and Purchaser. If any inconsistency should exist between the terms and
conditions of this Exercise Agreement and the terms and conditions of the Option
Agreement, the terms of the Option Agreement shall govern and control.
8. GOVERNING LAW. This Exercise Agreement is governed by Delaware law
except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
PURCHASER: Daisytek International Corporation
By:
Signature: ------------------------------
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Print Name: Title:
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Address: Address:
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