NON-QUALIFIED STOCK OPTION AGREEMENT NON-PLAN
Exhibit 4.7
NON-PLAN
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the “Agreement”) entered into as of December 11, 2009 (the “Grant Date”) between Options Media Group Holdings, Inc. (the “Company”) and Xxxxx Xxxxxxx (the “Optionee”).
(a) The Options vest in three equal increments each December 11, with the first vesting date being December 11, 2010, subject to the Optionee continuing to perform the Services on each applicable vesting date. In lieu of fractional vesting, the number of Options shall be rounded up each time until fractional Options are eliminated.
(b) Subject to Sections 3(c) and 4 of this Agreement, the Options may be exercised prior to vesting and remain exercisable until 6:00 p.m. New York time for five years from the Grant Date (the “Expiration Date”).
(c) Notwithstanding any other provision of this Agreement, at the discretion of the Board, the Options, whether vested or unvested, shall no longer be exercisable and will be immediately forfeited if any of the following events occur:
(1) The Optionee purchases or sells securities of the Company in violation of the Company’s xxxxxxx xxxxxxx guidelines then in effect, if any;
(2) The Optionee breaches any duty of confidentiality including that required by the Company’s xxxxxxx xxxxxxx guidelines then in effect, if any; or
(3) The Optionee recruits Company personnel for another entity or business within 24 months following termination of the Services.
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(a) If for any reason, except death or disability as provided below, the Optionee ceases to perform the Services, then the vested Options as of the date of ceasing to perform the Services may be exercised by the Optionee at any time within one year following termination of the Services.
(b) If the Optionee shall die prior to the termination of the Services, the personal representative of the Optionee’s estate or any Transferee, as defined herein, shall have the right within the two years to exercise the Options subject to Section 3(c). For the purpose of this Agreement, “Transferee” shall mean a person to whom such shares are transferred by will or by the laws of descent and distribution.
(c) If the Optionee becomes disabled, within the meaning of Section 22(e)(3) of the Code prior to the termination of the Services, the Optionee shall have the right within two years to exercise the Optionee’s vested Options.
(d) Notwithstanding anything contained in this Section 4, the Options may not be exercised after the Expiration Date.
(e) For purposes of this Section 4, “Company” shall include subsidiaries and/or affiliates of the Company.
(f) Any of the Options that were not vested immediately prior to ceasing to perform the Services shall terminate at that time.
(a) state the election to exercise the Options, the number of shares to be exercised, the person in whose name the stock certificate or certificates for such shares of common stock is to be registered, address and social security number of such person (or if more than one, the names, addresses and social security numbers of such persons);
(b) contain such representations and agreements as to the holder’s investment intent with respect to such shares of common stock as set forth in Section 12 hereof;
(c) be signed by the person or persons entitled to exercise the Options and, if the Options are being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel for the Company, of the right of such person or persons to exercise the Options;
(d) be accompanied by full payment of the exercise price by tender to the Company of an amount equal to the exercise price multiplied by the number of underlying shares being purchased either in cash, by wire transfer, or by certified check or bank cashier’s check, payable to the order of the Company; and
(e) be accompanied by payment of any amount that the Company, in its sole discretion, deems necessary to comply with any federal, state or local withholding requirements for income and employment tax purposes. If the Optionee fails to make such payment in a timely manner, the Company may: (i) decline to permit exercise of the Options or (ii) withhold and set-off against compensation and any other amounts payable to the Optionee the amount of such required payment. Such withholding may be in the shares underlying the Options at the sole discretion of the Company.
The certificate or certificates for shares of common stock as to which the Options shall be exercised shall be registered in the name of the person or persons exercising the Options.
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(a) If the shares of common stock shall be subdivided or combined into a greater or smaller number of shares or if the Company shall issue any shares of its common stock as a stock dividend on its outstanding common stock, the number of shares of common stock deliverable upon the exercise of the Options shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made in the exercise price per share to reflect such subdivision, combination or stock dividend.
(b) If the Company is to be consolidated with or acquired by another entity pursuant to an acquisition, the Board of any entity assuming the obligations of the Company hereunder (the “Successor Board”) shall either (i) make appropriate provision for the continuation of such Options by substituting on an equitable basis for the shares then subject to such Options the consideration payable with respect to the outstanding shares of common stock in connection with the acquisition; or (ii) terminate all Options in exchange for a cash payment equal to the excess of the fair market value of the shares underlying the Options over the exercise price thereof.
(c) In the event of a recapitalization or reorganization of the Company (other than a transaction described in Section 9(b) above) pursuant to which securities of the Company or of another corporation are issued with respect to the outstanding shares of common stock, the Optionee upon exercising Options shall be entitled to receive for the purchase price paid upon such exercise, the securities the Optionee would have received if the Optionee had exercised the Options prior to such recapitalization or reorganization.
(d) Except as expressly provided herein, no issuance by the Company of shares of common stock of any class or securities convertible into shares of common stock of any class shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares underlying the Options. No adjustments shall be made for dividends or other distributions paid in cash or in property other than securities of the Company.
(e) Under this Section 9, no fractional shares shall be issued and the Optionee shall receive from the Company cash in lieu of such fractional shares.
(f) The Board or the Successor Board shall determine the specific adjustments to be made under this Section 9, and its determination shall be conclusive. If the Optionee receives securities or cash in connection with a corporate transaction described in Section 9(a), (b) or (c) above as a result of owning such restricted common stock, such securities or cash shall be subject to all of the conditions and restrictions applicable to the restricted common stock with respect to which such securities or cash were issued, unless otherwise determined by the Board or the Successor Board.
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The Options are further subject to the requirement that, if at any time the Board shall determine, in its discretion, that the listing, registration, or qualification of the shares of common stock underlying the Options upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary as a condition of, or in connection with the issue or purchase of shares underlying the Options, the Options may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected.
(a) Reserve and keep available for issue such number of shares of its authorized and unissued common stock as will be sufficient to satisfy the requirements of this Agreement;
(b) Pay all original issue taxes with respect to the issuance of shares pursuant hereto and all other fees and expenses necessarily incurred by the Company in connection therewith;
(c) Use its best efforts to comply with all laws and regulations which, in the opinion of counsel for the Company, shall be applicable thereto.
The Optionee: Xxxxx Xxxxxxx
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The Company: Options Media Group Holdings, Inc.
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000 XX 00xx Xxxxxx
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Xxxxx 000
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Xxxx Xxxxx, XX 00000
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Attention: Xxxxx Xxxxxxx
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Facsimile: (000) 000-0000
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with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxx LLP
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
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or to such other address as either of them, by notice to the other may designate from time to time. The transmission confirmation receipt from the sender’s facsimile machine shall be evidence of successful facsimile delivery. Time shall be counted to, or from, as the case may be, the delivery in person or by mailing.
19. Governing Law. This Agreement and any dispute, disagreement, or issue of construction or interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein or performance shall be governed or interpreted according to the laws of the State of Nevada without regard to choice of law considerations.
(a) The Optionee agrees that, in order to ensure compliance with the restrictions set forth in this Agreement, the Company may issue appropriate “stop transfer” instructions to its duly authorized transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(b) The Company shall not be required (i) to transfer on its books any shares of the Company’s common stock that have been sold or otherwise transferred in violation of any of the provisions of the Agreement or (ii) to treat the owner of such shares of common stock or to accord the right to vote or pay dividends to any purchaser or other Transferee to whom such shares of common stock shall have been so transferred.
[Signature Page to Follow]
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WITNESSES: | OPTIONS MEDIA GROUP HOLDINGS, INC. | |||
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By:
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/s/ Xxxxx Xxxxxxx | ||
Xxxxx Xxxxxxx | ||||
Chief Executive Officer | ||||
OPTIONEE: | ||||
/s/ Xxxxx Xxxxxxx | ||||
Xxxxx Xxxxxxx |
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