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EXHIBIT 4.2
MRV COMMUNICATIONS, INC.
1998 NONSTATUTORY STOCK OPTION PLAN
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the ____ day of ___________,
1998 by and between MRV COMMUNICATIONS, INC. (the "Company") and __________
("Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1998 Nonstatutory Stock Option Plan (the "Plan") effective as of April 1, 1998,
and
WHEREAS, pursuant to the provisions of said Plan, the Board of
Directors or Compensation Committee of the Company, by action duly taken on
________________, _____, granted to the Optionee an option or options (the
"Option(s)") to purchase shares of the Common Stock of the Company on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. The Option(s). The Optionee may, at his/her option, purchase all
or any part of an aggregate of _______ shares of Common Stock (the "Optioned
Shares"), at the price of _______ per share (the "Option Price"), on the terms
and conditions set forth herein.
2. Exercise Dates and Exercise. The Option(s) shall be exercisable as
to the specified number of Optioned Shares on and after the "First" dates, when
such Option(s) shall respectively accrue and become vested, and on or before the
"Last" dates (the "Option Expiration Date") set forth below:
Exercise Dates
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Number of Shares First Last
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Optionee acknowledges that he (she) understands he (she) has no right whatsoever
to exercise the Option(s) granted hereunder with respect to any Optioned Shares
covered by any installment until such installment accrues and vests as provided
above. Optionee further understands that the Option(s) granted hereunder shall
expire and become unexercisable as provided in Section 3 below.
This Option shall be deemed exercised as to the shares to be
purchased when written notice of such exercise has been given to the Company at
its principal business office by the Optionee with respect to the Common Stock
to be purchased. Such notice shall be accompanied by full payment in cash or
cash equivalents of the Option Price, or by such other form of payment
authorized under the Plan.
3. Early Exercise and/or Termination
(a) Notwithstanding the foregoing provisions of Section 2, in the
event the Company or the stockholders of the Company enter into an agreement to
dispose of all or substantially all of the assets or capital stock of the
Company by means of a sale, merger, consolidation, reorganization, liquidation,
or otherwise, Option shall become immediately exercisable with respect to the
full number of shares subject to this Option during the period commencing as of
the date of execution of such agreement and ending as of the earlier of:
(i) the Option Expiration Date; or
(ii) the date on which the disposition of assets or capital
stock contemplated by the agreement is consummated. The exercise of any Option
made exercisable solely by reason of this Subsection 3(a) shall be conditioned
upon the consummation of the disposition of assets or stock under the above
referenced agreement. Upon the consummation of any such disposition of assets or
stock, any unexercised Options granted hereunder (or any unexercised portion
thereof) shall terminate and cease to be effective.
(b) Notwithstanding the provisions set forth in Subsection 3(a),
in the event that any such agreement shall be terminated without consummating
the disposition of said stock or assets:
(i) any unexercised non-vested installments that had become
exercisable solely by reason of the provisions of Subsection 3(a) shall again
become non-vested and unexercisable as of said termination of such agreement,
and
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(ii) the exercise of any option that had become exercisable
solely by reason of Subsection 3(a) shall be deemed ineffective and such
installments shall again become non-vested and unexercisable as of said
termination of such agreement.
(c) Notwithstanding the provisions set forth in Subsection 3(a),
the Board or Compensation Committee may, at its election and subject to the
approval of the corporation purchasing or acquiring the stock or assets of the
Company (the "surviving corporation"), arrange for Optionee to receive upon
surrender of Optionee's Option a new option covering shares of the surviving
corporation in the same proportion, at an equivalent option price and subject to
the same terms and conditions as the old Option. For purposes of the preceding
sentence, the excess of the aggregate fair market value of the shares subject to
such new option immediately after consummation of such disposition of stock or
assets over the aggregate option price of such shares of the surviving
corporation shall not be more than the excess of the aggregate fair market value
of all shares subject to the old Option immediately before consummation of such
disposition of stock or assets over the aggregate Option Price of such shares of
the Company, and the new option shall not give the Optionee additional benefits
which such Optionee did not have under the old Option or deprive the Optionee of
benefits which the Optionee had under the old Option. If such substitution of
options is effectuated, the Optionee's rights under the old Option shall
thereupon terminate.
(d) In the event that the Employment Agreement, Consulting
Agreement or employment between the Company and Optionee is terminated for any
reason other than death or disability, any unexercised Accrued Installments of
the Option granted hereunder to the terminated Optionee shall expire and become
unexercisable as of the earlier of, (i) the Option Expiration Date; or (ii) a
date 30 days after such termination occurs, provided however, that the Board or
Compensation Committee may, in the exercise of its discretion, extend said date
up to and including a date two years following such termination.
(e) In the event that the Optionee's employment, consulting or
other arrangement with the Company is terminated due to the death or disability
of the Optionee, any unexercised Accrued Installments of the Option granted
hereunder to the Optionee shall expire and become unexercisable as of the
earlier of, (i) the Option Expiration Date, or (ii) the first anniversary of the
date of death of the Optionee (if applicable); or (iii) the first anniversary of
the date of the termination of employment, consulting or other arrangement by
reason of disability (if applicable). Any such Accrued Installments of a
deceased Optionee may be exercised prior to his/her expiration by (and only by)
the person or persons to whom the Optionee's Option right shall pass by will or
by the laws of descent and distribution, if applicable, subject, however, to all
of the terms and conditions of the Plan and this Stock Option Agreement.
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(f) For purposes of this Section 3, an Optionee shall be deemed
employed by the Company (or Affiliated Company) during any period of leave of
absence from active employment as authorized by the Company (or Affiliated
Company).
4. Representations and Warranties; Registration of Shares Underlying
Options. In the event the Optioned Shares have not been registered under the
Securities Act of 1933 at the time of the exercise of any portion of this
Option, as a condition to the exercise of any portion of this Option, the
Company may require the Optionee to make any representation and/or warranty to
the Company as may, in the judgment of counsel to the Company, be required under
any applicable law or regulation, including but not limited to a representation
and warranty that the shares are being acquired only for investment purposes and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required under the
Securities Act of 1933 or any other applicable law, regulation or rule of any
governmental agency. Optionee hereby represents to the Company that each of the
Options evidenced hereby and the shares purchasable upon exercise thereof are
being acquired only for investment purposes and without any present intention to
sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent and distribution (collectively referred to herein as
a "Transfer"), and may be exercised during the lifetime of an Optionee only by
such Optionee; provided, that by a resolution adopted hereafter, the Board or
Compensation Committee may, on such terms and conditions as it may determine to
be appropriate, permit the Options to be Transferred if, at the time of such
Transfer, a registration statement under the Securities Act of 1933 of the
shares issuable upon exercise of this Option is then permitted through the use
of Form S-8 or similar successor Form.
6. No Enlargement of Employee Rights. If Optionee is employed by the
Company, nothing in this Agreement shall be construed to confer upon the
Optionee any right to continued employment with the Company or to restrict in
any way the right of the Company to terminate his (her) employment subject to
the terms of any applicable agreement (including the Employment Agreement).
Optionee acknowledges that in the absence of an express written employment
agreement to the contrary, Optionee's employment with the Company may be
terminated by the Company at any time, with or without cause.
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7. Withholding of Taxes. Optionee authorizes the Company to withhold,
in accordance with any applicable law, from any amounts payable to Optionee any
taxes required to be withheld by federal, state or local law as a result of the
grant of the Option(s) or the issuance of stock pursuant to the exercise of such
Option(s).
8. Laws Applicable to Construction; Choice of Jurisdiction and Forum.
This Agreement shall be construed and enforced in accordance with the laws of
the State of Delaware, without reference to the conflict of laws provisions of
any jurisdiction.
9. Agreement Binding on Successors. The terms of this Agreement shall
be binding upon the executors, administrators, heirs, successors, transferees
and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Adjustments upon Changes in Capitalization. If the outstanding
shares of Common Stock of the Company are increased, decreased, changed into or
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exchanged for a different number or kind of shares of the Company through
reorganization, recapitalization, reclassification, stock dividend, stock split
or reverse stock split, then an appropriate and proportionate adjustment shall
be made in the number or kind of shares which may be issued upon exercise of the
Options granted under this Agreement.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written above.
"The Company" "Optionee"
MRV COMMUNICATIONS, INC.
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By: Print Name:
Its: ----------------------
Address:
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MRV COMMUNICATIONS, INC. ---------------------------------
0000 Xxxxxxxxxx Xxxxxx ---------------------------------
Xxxxxxxxxx, XX 00000
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