STOCK OPTION AGREEMENT
UNDER
1999 NON-EMPLOYEE DIRECTOR PLAN
OF
▇▇▇▇▇ GOLF, INC.
STOCK OPTION AGREEMENT (this "Agreement") entered into this
____ day of ___________, ____, between ▇▇▇▇▇ GOLF, INC., a
Delaware corporation (the "Corporation"), and __________________,
a member of the Board of Directors of the Corporation (the
"Optionee," which term as used herein shall be deemed to include
any successor to the Optionee by will or by the laws of descent
and distribution, unless the context shall otherwise require).
Pursuant to the Corporation's 1999 Non-Employee Director
Plan (the "Plan"), the Corporation, acting through its
Compensation/Plan Committee of the Board of Directors (the
"Committee"), approved the issuance to the Optionee, effective as
of the date set forth above, of a nonqualified stock option to
purchase up to an aggregate of ____________ shares of common
stock, par value $.001, of the Corporation (the "Common Stock"),
at the price of $____ per share (the "Option Price") which
represents not less than 100% of the fair market value of a share
of Common Stock determined in accordance with the Plan, upon the
terms and conditions hereinafter set forth. (Capitalized terms
used herein but not defined herein shall have the meaning
ascribed to them in the Plan).
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as
follows:
1. OPTION; OPTION PRICE. On behalf of the Corporation,
the Committee hereby grants as of the date of this Agreement to
the Optionee the option (the "Option") to purchase, subject to
the terms and conditions of this Agreement and the provisions of
the Plan (which is incorporated by reference herein and which in
all cases shall control in the event of any conflict with the
terms, definitions and provisions of this Agreement),
_______________ shares of Common Stock of the Corporation at an
exercise price per share equal to the Option Price. A copy of
the Plan as in effect on the date hereof has been supplied to the
Optionee, and the Optionee by executing this Agreement hereby
acknowledges receipt thereof.
2. TERM. The term (the "Option Term") of the Option shall
commence on the date of this Agreement and shall terminate on the
fifth anniversary of the date of this Agreement, unless such
Option shall theretofore have been terminated in accordance with
the terms hereof or the provisions of the Plan.
3. VESTING; CHANGE OF CONTROL; RESTRICTIONS ON EXERCISE.
(a) Subject to the provisions of Sections 5 and 8 hereof,
and unless accelerated, as set forth in the Plan or as provided
herein, the Option granted hereunder shall vest and become
exercisable for the number of shares set forth opposite the dates
noted below (the "Option Vesting Schedule").
Cumulative
Date(s) Number of Vested Shares
------- -----------------------
(b) Notwithstanding the provisions of Paragraph 3(a) above,
upon a Change in Control (as hereinafter defined):
(i) the Option shall become fully vested and shall
become immediately exercisable with respect to all shares
subject to the Option;
(ii)upon exercise of the Option during the 60-day
period from and after the date of a Change of Control, the
Optionee may in lieu of the receipt of Common Stock upon the
exercise of the Option, elect by written notice to the
Corporation to receive an amount in cash equal to the excess
of the aggregate Value (as defined below) of the shares of
Common Stock covered by the Option or portion thereof
surrendered determined on the date the Option is exercised,
over the aggregate exercise price of the Option (such excess
is referred to herein as the "Aggregate Spread"); provided,
however, if the end of such 60-day period from and after the
date of a Change of Control is within six months of the date
of grant of the Option, the Option shall be cancelled in
exchange for a cash payment to the Optionee equal to the
Aggregate Spread on the day which is six months and one day
after the date of grant of the Option. As used in this
Section 3(b)(ii), the term "Value" means the higher of (1)
the highest Fair Market Value (as defined below) during the
60-day period from and after the date of a Change of Control
and (2) if the Change of Control is the result of a
transaction or series of transactions described in
paragraphs (i) or (iii) of the definition of Change of
Control, the highest price per share of the Common Stock
paid in such transaction or series of transactions (which in
the case of paragraph (i) shall be the highest price per
share of the Common Stock as reflected in a Schedule 13D
filed by the person having made the acquisition) and the
term "Fair Market Value" means the "Fair Market Value" of
the Common Stock on any date of reference shall be the
closing price on the business day immediately preceding such
date. For this purpose, the closing price of the Common
Stock on any business day shall be (i) if the Common Stock
is listed or admitted for trading on any United States
national securities exchange, the last reported sale price
of the Common Stock on such exchange, as reported in any
newspaper of general circulation, (ii) if actual
transactions in the Common Stock are included in the Nasdaq
National Market or are reported on a consolidated
transaction reporting system, the closing sales price of the
Common Stock on such system, (iii) if the Common Stock is
otherwise quoted on the Nasdaq system, or any similar system
of automated dissemination of quotations of securities
prices in common use, the mean between the closing high bid
and low asked quotations for such day of the Common Stock on
such system, (iv) if none of clause (i), (ii) or (iii) is
applicable, the mean between the high bid and low asked
quotations for the Common Stock as reported by the National
Daily Quotation Service if at least two securities dealers
have inserted both bid and asked
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quotations for the Common Stock on at least five (5) of the
ten (10) preceding days and (v) if none of clause (i), (ii),
(iii) or (iv) is applicable, the most recent valuation price
for the Common Stock as adjusted by the Board in the
exercise of its good faith discretion;
(iii) if the Optionee ceases to be a Director
regardless of the reason therefor other than death following
a Change of Control, the Option may be exercised by the
Optionee until the earlier of sixty (60) days after the
Optionee ceases to be a Director or the expiration date of
the Option;
(iv) the Option becomes non-cancelable; and
(v) if the Option shall remain exercisable after any
such Change of Control, from and after such Change of
Control, the Option shall be exercisable only for the kind
and amount of securities and/or other property, or the cash
equivalent thereof, receivable as a result of such Change of
Control by the holder of a number of shares of stock for
which the Option could have been exercised immediately prior
to such Change of Control.
(c) For purposes of this Agreement, a Change in Control of
the Corporation shall be deemed to have occurred upon the
happening of any of the following events:
(i) the acquisition, other than from the Corporation,
by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) other than
Royal Holding Company, Inc. or ▇. ▇. ▇▇▇▇▇ of beneficial
ownership of thirty percent (30%) or more of either the then
outstanding shares of Common Stock of the Corporation or the
combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in
the election of directors; provided, however, that any
acquisition by the Corporation or any corporation or other
entity, whether domestic or foreign, in which the
Corporation has or obtains, directly or indirectly, a
proprietary interest of more than fifty percent (50%) by
reason of stock ownership or otherwise ("Subsidiary"), or
any employee benefit plan (or related trust) of the
Corporation or its Subsidiaries, or any corporation with
respect to which, following such acquisition, more than
fifty percent (50%) of, respectively, the then outstanding
shares of common stock of such corporation and the combined
voting power 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 all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Common Stock and voting securities of the Corporation
immediately prior to such acquisition in substantially the
same proportion as their ownership, immediately prior to
such acquisition, of the then outstanding shares of Common
Stock of the Corporation or the combined voting power of the
then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors, as
the case may be, shall not constitute a Change of Control;
(ii) individuals who constitute the Board of Directors
of the Corporation as of January 1, 1999 (the "Incumbent
Board") cease for any reason to constitute at least a
majority of the Board of Directors of the Corporation,
provided that any individual
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becoming a director subsequent to such date whose election,
or nomination for election by the Corporation's
stockholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in
connection with an actual or threatened election contest
relating to the election of the directors of the Corporation
(as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"));
(iii) approval by the stockholders of the
Corporation of a reorganization, merger or consolidation of
the Corporation, in each case, with respect to which the
individuals and entities who were the respective beneficial
owners of the Common Stock and voting securities of the
Corporation immediately prior to such reorganization, merger
or consolidation do not, following such reorganization,
merger or consolidation, beneficially own, directly or
indirectly, more than sixty percent (60%) of, respectively,
the then outstanding shares of Common Stock and the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such
reorganization, merger or consolidation;
(iv) consummation by the Corporation of the sale or
other disposition by the Corporation of all or substantially
all of the Corporation's assets; or
(v) approval by the stockholders of the Corporation or
any order by a court of competent jurisdiction of a plan of
liquidation of the Corporation.
(d) If the Corporation shall consummate any merger,
consolidation or other reorganization not involving a Change of
Control (a "Reorganization") in which holders of shares of Common
Stock are entitled to receive in respect of such shares any
securities, cash or other consideration (including, without
limitation, a different number of shares of Common Stock), the
Option shall thereafter be exercisable, in accordance with the
Plan and this Agreement, only for the kind and amount of
securities, cash and/or other consideration receivable upon such
Reorganization by a holder of the same number of shares of Common
Stock as are subject to the Option immediately prior to such
Reorganization, and any adjustments will be made to the terms of
the Option in the sole discretion of the Committee as it may deem
appropriate to give effect to the Reorganization.
(e) Subject to the provisions of Sections 5 and 8 hereof,
shares as to which the Option becomes exercisable pursuant to the
foregoing provisions may be purchased at any time thereafter
prior to the expiration or termination of the Option.
4. TERMINATION OF OPTION.
(a) The unexercised portion of the Option shall
automatically and without notice terminate and become null and
void at the time of the earliest to occur of:
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(i) sixty (60) days after the date that the Optionee
ceases to be a Director regardless of the reason therefor
other than as a result of such termination by death of the
Optionee;
(ii) one (1) year after the date that the Optionee
ceases to be a Director by reason of death of the Optionee
or six (6) months after the Optionee shall die if that shall
occur during the sixty-day period described in Section
4(a)(i); or
(iii) the expiration date of the term of the
Option.
5. PROCEDURE FOR EXERCISE.
(a) Subject to the requirements of Section 8, the Option
may be exercised, from time to time, in whole or in part (but for
the purchase of a whole number of shares only), by delivery of a
written notice (the "Notice") from the Optionee to the Secretary
of the Corporation, which Notice shall:
(i) state that the Optionee elects to exercise the
Option;
(ii) state the number of shares with respect to which
the Option is being exercised (the "Optioned Shares");
(iii) state the date upon which the Optionee
desires to consummate the purchase of the Optioned Shares
(which date must be prior to the termination of such Option
and no later than thirty (30) days after the date of receipt
of such Notice);
(iv) include any representations of the Optionee
required under Section 8(c); and
(v) if the Option shall be exercised pursuant to
Section 10 by any person other than the Optionee, include
evidence to the satisfaction of the Committee of the right
of such person to exercise the Option.
(b) Payment of the Option Price for the Optioned Shares
shall be made in U.S. dollars by personal check, bank draft or
money order payable to the order of the Corporation or by wire
transfer.
(c) The Corporation shall issue a stock certificate in the
name of the Optionee (or such other person exercising the Option
in accordance with the provisions of Section 10) for the Optioned
Shares as soon as practicable after receipt of the Notice and
payment of the aggregate Option Price for such shares.
6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall have no
rights as a stockholder of the Corporation with respect to any
Optioned Shares until the date the Optionee or his nominee
(which, for purposes of this Agreement, shall include any third
party agent selected by the Committee to hold such Option Shares
on behalf of the Optionee), guardian or legal representative is
the holder of record of such Optioned Shares.
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7. ADJUSTMENTS.
(a) If at any time while the Option is outstanding, (1)
there shall be any increase or decrease in the number of issued
and outstanding shares of Common Stock through the declaration of
a stock dividend, stock split, combination of shares or through
any recapitalization resulting in a stock split-up, spin-off,
combination or exchange of shares of Common Stock or (2) the
value of the outstanding shares of Common Stock is reduced by
reason of an extraordinary cash dividend, then and in each such
event appropriate adjustment shall be made in the number of
shares and the exercise price per share covered by the Option, so
that the same proportion of the Corporation's issued and
outstanding shares of Common Stock shall remain subject to
purchase at the same aggregate exercise price.
(b) Except as otherwise expressly provided herein, the
issuance by the Corporation of shares of its capital stock of any
class, or securities convertible into shares of capital stock of
any class, either in connection with a direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Corporation
convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with
respect to, the number of or exercise price of shares of Common
Stock covered by the Option.
(c) Without limiting the generality of the foregoing, the
existence of the Option shall not affect in any manner the right
or power of the Corporation to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or
other changes in the Corporation's capital structure or its
business; (ii) any merger or consolidation of the Corporation;
(iii) any issue by the Corporation of debt securities, or
preferred or preference stock that would rank above the shares of
Common Stock covered by the Option; (iv) the dissolution or
liquidation of the Corporation; (v) any sale, transfer or
assignment of all or any part of the assets or business of the
Corporation; or (vi) any other corporate act or proceeding,
whether of a similar character or otherwise.
8. ADDITIONAL PROVISIONS RELATED TO EXERCISE.
(a) The Option shall be exercisable only in accordance with
this Agreement, including the provisions regarding the period
when the Option may be exercised and the number of shares of
Common Stock that may be acquired upon exercise.
(b) The Option may not be exercised as to less than one
hundred (100) shares of Common Stock at any one time unless less
than one hundred (100) shares of Common Stock remain to be
purchased upon the exercise of the Option.
(c) To exercise the Option, the Optionee shall follow the
provisions of Section 5 hereof. Upon the exercise of the Option
at a time when there is not in effect a registration statement
under the Securities Act of 1933, as amended (the "Securities
Act") relating to the shares of Common Stock issuable upon
exercise of the Option, the Committee in its discretion may, as a
condition to the exercise of the Option, require the Optionee (i)
to represent in writing that the shares of Common Stock received
upon exercise of the Option are being acquired for investment and
not with a view to distribution and (ii) to make such other
representations and warranties as are deemed appropriate by
counsel to the Corporation. No Option may be exercised and no
shares of Common Stock shall be issued and delivered upon the
exercise of the Option unless and until the Corporation and/or
the
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Optionee shall have complied with all applicable federal or state
registration, listing and/or qualification requirements and all
other requirements of law or of any regulatory agencies having
jurisdiction.
(d) Stock certificates representing shares of Common Stock
acquired upon the exercise of the Option that have not been
registered under the Securities Act shall, if required by the
Committee, bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED."
(e) The exercise of each Option and the issuance of shares
in connection with the exercise of an Option shall, in all cases,
be subject to each of the following conditions: (i) the
declaration of effectiveness by the Securities and Exchange
Commission ("SEC") of a registration statement relating to a
primary offering of the Common Stock, filed by the Corporation
with the SEC under the Securities Act, (ii) the satisfaction of
withholding tax or other withholding liabilities, (iii) the
listing, registration or qualification of any to-be-issued shares
upon any securities exchange, any NASDAQ or other trading or
quotation system or under any federal or state law, (iv) the
consent or approval of any regulatory body, (v) the execution of
a lock-up agreement with one or more prospective underwriters, or
(vi) the execution of a buy-sell or shareholders agreement with
other shareholders of the Corporation. The Committee shall in
its sole discretion determine whether one or more of these
conditions is necessary or desirable to be satisfied in
connection with the exercise of an Option and prior to the
delivery or purchase of shares pursuant to the exercise of an
Option. The exercise of an Option shall not be effective unless
and until such condition(s) shall have been satisfied or the
Committee shall have waived such conditions, in its sole
discretion.
9. RESTRICTION ON TRANSFER. The Option may not be
assigned or transferred except by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations
order as defined in the Code, and may be exercised during the
lifetime of the Optionee only by the Optionee or the Optionee's
guardian or legal representative or assignee pursuant to a
qualified domestic relations order. If the Optionee dies, the
Option shall thereafter be exercisable, during the period
specified in Section 4(a)(ii), by his executors or administrators
or by a person who acquired the right to exercise such option by
bequest or inheritance to the full extent to which the Option was
exercisable by the Optionee at the time of his death. The Option
shall not be subject to execution, attachment or similar process.
Any attempted assignment or transfer of the Option contrary to
the provisions hereof, and the levy of any execution, attachment
or similar process upon the Option, shall be null and void and
without effect.
10. NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if (i) personally delivered, (ii) sent by nationally-
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recognized overnight courier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Optionee, to the address set forth on the
signature page hereto; and
if to the Corporation, to:
▇▇▇▇▇ Golf, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
with a copy to:
▇▇▇▇▇ Golf, Ltd.
c/▇ ▇▇▇▇▇ Golf GP Corp.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
or to such other address as the party to whom notice is to be
given may have furnished to each other party in writing in
accordance herewith. Any such communication shall be deemed to
have been given (i) when delivered, if personally delivered, (ii)
on the first Business Day (as hereinafter defined) after
dispatch, if sent by nationally-recognized overnight courier and
(iii) on the third Business Day following the date on which the
piece of mail containing such communication is posted, if sent by
mail. As used herein, "Business Day" means a day that is not a
Saturday, Sunday or a day on which banking institutions in the
city to which the notice or communication is to be sent are not
required to be open.
11. NO WAIVER. No waiver of any breach or condition of
this Agreement shall be deemed to be a waiver of any other or
subsequent breach or condition, whether of like or different
nature.
12. OPTIONEE UNDERTAKING. The Optionee hereby agrees to
take whatever additional actions and execute whatever additional
documents the Corporation or its counsel may in their reasonable
judgment deem necessary or advisable in order to carry out or
effect one or more of the obligations or restrictions imposed on
the Optionee pursuant to the express provisions of this
Agreement.
13. MODIFICATION OF RIGHTS. The rights of the Optionee are
subject to modification and termination in certain events as
provided in this Agreement and the Plan.
14. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of
Delaware applicable to contracts made and to be wholly performed
therein.
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15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument.
16. ENTIRE AGREEMENT. This Agreement and the Plan
constitute the entire agreement between the parties with respect
to the subject matter hereof, and supersede all previously
written or oral negotiations, commitments, representations and
agreements with respect thereto.
▇▇▇▇▇ GOLF, INC.
By:________________________________
Name:______________________________
Title:_____________________________
OPTIONEE:
___________________________________
Name:______________________________
Address: _________________________
_________________________
________________________
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Ladies/Gentlemen:
I hereby exercise my Stock Option to purchase _________ shares of
Common Stock of ▇▇▇▇▇ GOLF, INC. at the option price of $____ per
share as provided in the Stock Option Agreement dated the ___ day
of ________________.
I acknowledge that I previously received a copy of the 1999 Non-
Employee Director Plan of ▇▇▇▇▇ Golf, Inc. and executed a Stock
Option Agreement, and I have carefully reviewed both documents.
I have considered the federal tax implications of my option. I
hereby tender my personal check, bank draft or money order
payable to ▇▇▇▇▇ GOLF, INC. in the amount of $____________ or, I
have wire transferred $_______________ to ▇▇▇▇▇ GOLF, INC., which
transfer shall be subject to the confirmation of receipt of funds
by the Corporation. [If payment is to be made by wire transfer,
the Optionee should contact the Corporation's Chief Financial
Officer or Controller in advance to obtain wiring instructions.]
__________________________
Optionee
__________________________
Date