OVERSEAS FILMGROUP, INC.
1996 SPECIAL STOCK OPTION PLAN AND AGREEMENT
This OVERSEAS FILMGROUP, INC. 1996 SPECIAL STOCK OPTION PLAN AND
AGREEMENT (the "Plan Agreement") is made and entered into this 31st day of
October, 1996 by and among XXXXXX X. XXXXXX, XXXXX XXXXXXXX LITTLE and OVERSEAS
FILMGROUP, INC., a Delaware corporation (the "Company"). Xxxxxx X. Xxxxxx and
Xxxxx Xxxxxxxx Little are each sometimes individually referred to herein as an
"Optionee" and they sometimes are collectively referred to herein as the
"Optionees."
RECITALS
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A. The Company has entered into an Employment Agreement dated as of
October 31, 1996 with each Optionee (the "Employment Agreements").
B. As a term and condition of each Employment Agreement and as
consideration for the execution thereof, the parties have entered into this
Plan Agreement.
AGREEMENT
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NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) This Plan Agreement has been approved by the affirmative vote of
the holders of the outstanding voting stock of the Company within the time
period, and pursuant to the procedures, required for compliance with the
provisions of Rule 16b-3 of the General Rules and Regulations ("Rule 16b-3")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
Section 162(m)(4)(C) of the Internal Revenue Code of 1986, as amended (the
"Code");
(b) The grant of options under this Plan Agreement and the terms and
conditions of this Plan Agreement have been approved by a committee (the
"Committee") comprised solely of two or more Directors of the Company who are
(i) "outside directors" within the meaning of Section 162(m)(4)(C) of the Code
and (ii) "disinterested persons" within the meaning of Rule 16b-3(c)(2)(i)
under the Exchange Act; and
(c) This Plan Agreement complies in all respects with Rule 16b-3 in
connection with the options to be granted hereunder.
2. Registration; Reservation of Shares. The Company represents,
warrants, covenants and agrees that within fourteen calendar days of the date
hereof the Company shall have registered under the Securities Act of 1933, as
amended (the "Act"), this Plan Agreement and the shares of the Company's common
stock , $.001 par value per share ("Common Stock"), issuable upon exercise of
the options to be granted hereunder on such form and in such manner so that
upon exercise of the options hereunder the shares of Common Stock issuable as a
result thereof may be transferred thereafter by the Optionees without any
restriction whatsoever under any federal or state securities law. Until all
options granted hereunder have been exercised or have expired, the Company
shall use its best efforts to maintain such
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registration, keep the applicable registration statement effective and
otherwise permit the transferability by Optionees of the Common Stock issuable
upon exercise of the options granted hereunder without restriction under any
federal or state securities laws. The Company shall cause all shares of Common
Stock issuable upon exercise of the options granted hereunder to be listed on
each securities exchange or quotation system on which similar securities issued
by the Company are then listed. All of the foregoing actions of the Company
have been and shall be at the Company's expense. The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate
of its authorized but unissued Common Stock, for the purpose of enabling it to
satisfy any obligation to issue shares of Common Stock upon exercise of the
Options, the maximum number of shares of Common Stock which may then be
deliverable upon the exercise of all outstanding Options.
3. Grants to Optionees.
The Company hereby grants, on the date hereof (the "Date of Grant"),
to each Optionee, subject to the terms and conditions set forth herein, options
to purchase from the Company an aggregate of 1,100,000 shares of the Company's
Common Stock per Optionee, of which options to purchase 537,500 shares of
Common Stock shall be referred to herein as "Group A Options" and options to
purchase 562,500 shares of Common Stock shall be referred to herein as "Group B
Options." The Group A Options and the Group B Options shall be collectively
referred to herein as the "Options" and each option hereunder is sometimes
individually referred to herein as an "Option." Neither the Group A Options nor
the Group B Options are intended to qualify as and will not be treated as
"incentive stock options" within the meaning of Section 422 of the Code. The
maximum number of shares of Common Stock for which each Optionee may be granted
options under this Plan Agreement shall be limited to 1,100,000 (such number
being subject to adjustment in accordance with the terms and provisions hereof
including, without limitation, Section 12 hereof).
4. Price and Exercise of the Options.
(a) Exercise Price. The exercise price of the Group A Options is $5.00
per share of Common Stock, subject to adjustment as provided in this Plan
Agreement. The exercise price of the Group B Options is $8.50 per share of
Common Stock, subject to adjustment as provided in this Plan Agreement. The
exercise price of the Group A Options and the exercise price of the Group B
Options, shall be referred to herein as the "Exercise Prices" (and each as an
"Exercise Price"). The Exercise Price shall be paid in full at the time of
exercise (except to the extent the sale and remittance procedure described in
subparagraph (iv) below is utilized) by one of the following methods selected
in each case by the Optionee:
(i) in cash or by certified or cashier's check payable to the
order of the Company,
(ii) by cancellation of indebtedness owed by the Company to the
Optionee exercising the Option, including, without limitation, the Merger Note
(as defined in that certain Merger Agreement by and among Entertainment/Media
Acquisition Corporation, Overseas Filmgroup, Inc., Xxxxxx X. Xxxxxx and Xxxxx
Xxxxxxxx Little, dated as of July 2, 1996 as amended by that certain Amendment
to Agreement of Merger dated as of September 20, 1996 by and among the same
parties (as so amended, the "Merger Agreement"),
(iii) by delivery of shares of the Common Stock of the Company
already beneficially owned by the Optionee(s) and having an aggregate Current
Market Price determined in accordance with Section 9 hereof equal to the total
Exercise Price of the Options being exercised (provided such shares have been
beneficially owned by the Optionee(s) for at least six (6) months),
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(iv) through a special sale and remittance procedure, which the
Company shall promptly establish, pursuant to which upon irrevocable written
instructions of Optionee to the Company (a) a Company-designated brokerage firm
shall effect the immediate sale of the shares underlying the Options being
exercised and remit to the Company, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate Exercise Price payable
for the exercise of the Options covering such shares plus all applicable taxes
required to be withheld by the Company by reason of such exercise, (b) the
remainder of the sale proceeds shall be promptly remitted to Optionee and (c)
the Company shall deliver the certificates for such shares underlying the
Options being exercised directly to such brokerage firm in order to complete
the sale,
(v) by any combination thereof, or
(vi) in such other manner as the Committee may specify in order to
facilitate the exercise of Options by the Optionees.
(b) Exercise Notice. In order to exercise an Option, the Optionee or
any other person or persons entitled to exercise the Option shall give written
notice to the Secretary of the Company or to such other person as may be
designated by the Company, in the form set forth on Exhibit "A" or Exhibit "B,"
specifying the number of shares to be purchased. If the Option is being
exercised by any person(s) other than the Optionee, such notice shall be
accompanied by proof, satisfactory to counsel for the Company, of the right of
such person(s) to exercise the Option. This notice shall be accompanied by
payment of the Exercise Price for the shares as provided in Section 4(a). The
Optionee shall also deliver such additional documents as the Company may then
reasonably require pursuant to this Plan Agreement.
(c) Withholding Tax. Upon the exercise of an Option, the Company shall
have the right to require the Optionee, and Optionee hereby agrees, to pay the
Company the amount of any taxes which the Company may be required to withhold
with respect thereto. The Committee may, in its discretion, grant an Optionee,
at any time while any of such Optionee's Options remain outstanding, the right
to pay the amount of any taxes which the Company may be required to withhold in
connection with the subsequent exercise of such Options by delivering shares of
Common Stock with a Current Market Price (determined in accordance with Section
9 hereof) equal to such withholding tax obligation. If such right is granted to
an Optionee, then the shares which may be delivered in satisfaction of such
withholding tax obligation may, at such Optionee's discretion, be either shares
withheld by the Company upon the exercise of the Option or other shares of
Common Stock.
5. Vesting Schedule.
(a) Subject to paragraphs (c), (d), (e) and (f) of this Section 5 and
Section 7 of this Plan Agreement, the Group A Options granted to each Optionee
will vest as follows:
Number of Shares
of Common Stock
Underlying Options which
Vesting Date Vest on Vesting Date
------------ --------------------
Date of Grant 100,000
October 30, 1997 87,500
October 30, 1998 87,500
October 30, 1999 87,500
October 30, 2000 87,500
October 30, 2001 87,500
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(b) Subject to paragraphs (c), (d), (e) and (f) of this Section 5 and
Section 7 of this Plan, the Group B Options granted to each Optionee will vest
as follows:
Number of Shares
of Common Stock
Underlying Options which
Vesting Date Vest on Vesting Date
------------ --------------------
October 30, 1997 112,500
October 30, 1998 112,500
October 30, 1999 112,500
October 30, 2000 112,500
October 30, 2001 112,500
(c) Notwithstanding the foregoing, if, during the term of an
Optionee's employment under such Optionee's Employment Agreement, such
Optionee's employment with the Company (i) is validly terminated by the Company
for "Cause" (as defined in such Optionee's Employment Agreement) or (ii) is
voluntarily terminated by such Optionee other than for "Good Reason" (as
defined in such Optionee's Employment Agreement), then all of such Optionee's
unvested Options shall cease to continue to vest and all of such Optionee's
unvested Options shall expire and become void.
(d) Notwithstanding anything to the contrary contained in this Plan
Agreement (including anything in Section 13), if an Optionee's employment with
the Company is terminated (i) by the Company other than for "Cause" (as such
term is defined in such Optionee's Employment Agreement), or (ii) by Employee
for "Good Reason" (as such term is defined in such Optionee's Employment
Agreement), then all of such Optionee's Options shall automatically and without
any required action on the part of Optionee or the Company, immediately fully
vest (to the extent any such Options were unvested) and become exercisable.
(e) Notwithstanding anything to the contrary contained herein, (i) if
an Optionee's employment with the Company is terminated as a result of
Optionee's Death or Disability (as such terms are defined in Optionee's
Employment Agreement) and the other Optionee's employment with the Company
shall not have previously terminated, then such deceased or disabled Optionee's
Options which were to have vested on the next two Vesting Dates following the
date of such termination of employment due to Death or Disability shall
automatically, and without any required action on the part of Optionee or the
Company, immediately fully vest (to the extent such Options were unvested at
the time of such Optionee's termination of employment due to Death or
Disability) and become exercisable and (ii) if an Optionee's employment with
the Company is terminated as a result of Optionee's Death or Disability and the
other Optionee's employment with the Company shall have previously terminated
or shall simultaneously terminate due to Death or Disability, then such
deceased or disabled Optionee's Options which were to have vested on the next
Vesting Date following the date of such Optionee's termination of employment
due to Death or Disability shall automatically, and without any required action
on the part of Optionee or the Company, immediately fully vest (to the extent
such Options were unvested at the time of such Optionee's termination of
employment due to Death or Disability) and become fully exercisable. Any
portion of the deceased or disabled Optionee's Options which remain unvested
after the application of the acceleration provisions of this paragraph (e) upon
such Optionee's Death or Disability shall cease to continue to vest and such
unvested portion of the deceased or disabled Optionee's Options shall
immediately expire and become void.
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(f) In addition to the accelerated vesting pursuant to paragraphs (d)
and (e) of this Section 5, the vesting of shares subject to the Options granted
to an Optionee shall accelerate upon the terms and conditions set forth in
Sections 7 and 13 hereof.
(g) Installments of vested Options may be exercised in whole or in
part, and, to the extent not exercised, will accumulate and be exercisable at
any time on or before termination of the Options.
6. Expiration Date.
Both the Group A Options and the Group B Options shall terminate and
expire at 5:00 p.m., California time, on October 30, 2003. In no event may
either the Group A Options or the Group B Options be exercised after the date
on which they terminate.
7. Redemption of Group A Options
The Company may, upon the affirmative vote of the majority of the
Committee, call the Group A Options for redemption, in whole or in part, at a
price of $0.01 per Group A Option (each, a "Redemption Call"), (i) on the date,
if any, on which the Company calls for redemption (the "Warrant Call") all of
the Company's Redeemable Common Stock Purchase Warrants issued pursuant to that
certain Warrant Agreement dated as of February 16, 1995, by and between the
Company and Continental Stock Transfer & Trust Company or (ii) at any time
after the Warrant Call, upon notice in the case of (i) and (ii) (in the manner
set forth below) to each Optionee of not less than 30 days prior to the date of
redemption (the "Redemption Date"), and, in the case of a Redemption Call
pursuant to clause (ii) of this sentence, such Redemption Call may only be made
if the Current Market Price (determined in accordance with Section 9 hereof) of
the Common Stock has been at least $8.50, subject to adjustment in accordance
with Section 12 hereof, on each of the twenty (20) consecutive trading days
ending on the third business day prior to the date on which notice of such
Redemption Call is given. Any Group A Options which are subject to a Redemption
Call, but which have not vested prior to such Redemption Call, shall
immediately become fully vested. The Company shall cause to be mailed,
certified mail, postage prepaid, return receipt requested, to each Optionee at
the notice address set forth in Section 15 hereof, a written notice, notifying
such Optionee that the Company has called all or a portion of the Group A
Options for redemption and stating (i) the Redemption Date, (ii) the number of
Group A Options called for redemption (identifying any Group A Options called
for redemption which are not yet vested), (iii) that all Group A Options
subject to such Redemption Call which have not been previously exercised may be
exercised prior to and including the Redemption Date, regardless of whether
such Group A Options would otherwise be vested as of such Redemption Date and
(iv) that all Group A Options which are the subject of such Redemption Call
which are not exercised on or before the Redemption Date shall thereafter cease
to be exercisable. Notwithstanding anything to the contrary in the foregoing,
in the event that exercise of an Optionee's Group A Options and/or sale of the
shares received upon exercise during the period after a Redemption Call and
prior to the applicable Redemption Date (i) would result in liability under
Sections 10(b) or 16(b) of the Exchange Act or (ii) would be prohibited or
restricted in any manner by any applicable law or regulation, the redemption of
such Optionee's Group A Options shall be delayed until the tenth day after the
later of (i) last date upon which such exercise and sale would result in such
liability or (ii) the last date when any applicable law or regulation would
prohibit or restrict in any manner such exercise or sale.
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8. Transferability.
The Options granted under this Plan Agreement shall be
non-transferable by the holder either voluntarily or by operation of law, other
than by will or the laws of descent and distribution, and shall be exercisable
during the holder's lifetime only by the holder, regardless of any community
property interest therein of the spouse of the holder, or such spouse's
successors in interest. If the spouse of the holder shall have acquired a
community property interest in an Option pursuant to a domestic relations order
as defined under the Code or Title 1 of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), the holder, or the holder's permitted
successors in interest, may exercise the Option on behalf of the spouse of the
holder or such spouse's successors in interest.
9. Current Market Price of Common Stock
For purposes of this Plan Agreement, Current Market Price means the
closing price of a share of Common Stock on the trading day immediately
preceding the date of such determination. The closing price shall be the last
reported sales price regular way (or, in case no such reported sale takes place
on such day, the last reported sales price regular way for the most recent day
for which such information is available shall be used), in each case on the
principal national securities exchange or in the Nasdaq National Market System
to which the shares of Common Stock are listed or admitted to trading, or if
not listed or admitted to trading thereon, the average of the closing bid and
asked prices of the Common Stock in the over-the-counter market as reported by
Nasdaq or any comparable system, or if the Common Stock is not listed on Nasdaq
or a comparable system, the average of the closing bid and asked prices on such
day in the domestic over-the-counter market as reported on the NASD Electronic
Bulletin Board, or, if not reported on such bulletin board, in the "pink
sheets" published by the National Quotation Bureau, Incorporated. If at any
time the Common Stock is not listed on any national securities exchange or
quoted in the Nasdaq System or the over-the-counter market or reported on the
NASD Electronic Bulletin Board or in the "pink sheets" published by the
National Quotation Bureau, Incorporated, the Current Market Price on such day
shall be the fair market value thereof reasonably determined in good faith by
the Committee and agreed to by the Optionees (which agreement shall not be
unreasonably withheld) based upon such information and advice as they mutually
consider appropriate (such agreement between the Committee and the Optionees
being referred to herein as "Mutual Agreement"). If the Committee and the
Optionee are unable to so agree within twenty-one (21) days of the date of
determination, the Current Market Price on such day will be the fair market
value thereof determined by an independent, nationally recognized investment
banking firm selected by mutual agreement of the Committee and the Optionees
(an "Agreed Upon Firm").
10. No Right to Continued Employment or Engagement by the Company.
This Plan Agreement is not an employment contract and nothing in this
Plan Agreement shall be deemed to create in any way whatsoever any obligation
on Optionee's part to continue in the employ of the Company, or an affiliate of
the Company or on the Company's part to continue Optionee's employment with the
Company or an affiliate of the Company.
11. Privileges of Stock Ownership
No person entitled to exercise any Option granted under this Plan
Agreement shall have any of the rights or privileges of a stockholder of the
Company in respect of any shares of Common Stock issuable upon exercise of such
Option until certificates representing such shares shall have been issued and
delivered.
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12. Adjustment of Exercise Prices and Number of Options.
The Exercise Prices shall be subject to adjustment from time to time
as hereinafter provided.
(a) Subdivision or Combination of Stock. In case the Company shall at
any time subdivide the outstanding shares of Common Stock into a greater number
of shares, whether through a stock split, stock dividend or otherwise, the
number of shares of Common Stock issuable upon exercise of the Options shall be
proportionately increased and the Exercise Prices in effect immediately prior
to such subdivision shall be proportionately reduced, and conversely, in case
the outstanding shares of Common Stock shall be combined into a smaller number
of shares, the number of shares of Common Stock issuable upon exercise of the
Options shall be proportionately reduced and the Exercise Prices in effect
immediately prior to such combination shall be proportionately increased. Upon
each adjustment of the Exercise Prices pursuant to this paragraph (a), each
Optionee shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares of Common Stock obtained
by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
such Option immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(b) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, Etc. In case the Company (i) consolidates with or merges into
any other entity and is not the continuing or surviving corporation of such
consolidation or merger, or (ii) permits any other entity to consolidate with
or merge into the Company and the Company is the continuing or surviving
corporation but in connection with such consolidation or merger, the Common
Stock is changed into or exchanged for stock or other securities of any other
corporation or cash or any other assets, or (iii) transfers all or
substantially all of its properties and assets to any other entity, or (iv)
effects a capital reorganization or reclassification of the capital stock of
the Company in such a way that holders of Common Stock shall be entitled to
receive stock, securities, cash or assets with respect to or in exchange for
Common Stock (each of the foregoing events in clauses (i) through (iv) being a
"Fundamental Change"), then in each such case proper provision shall be made so
that, upon the basis and upon the terms and in the manner provided in this
subsection (b), the Optionees, upon the exercise of the Options at any time
after the consummation of such Fundamental Change, shall be entitled to receive
(at the aggregate Exercise Price in effect for all shares of Common Stock
issuable upon such exercise immediately prior to such consummation as adjusted
to the time of such transaction), in lieu of shares of Common Stock issuable
upon such exercise prior to such consummation, the stock and other securities,
cash and assets to which such Optionees would have been entitled upon such
consummation if such Optionees had exercised such Options immediately prior
thereto (subject to adjustments subsequent to such corporate action as nearly
equivalent as possible to the adjustments provided for in this Section 12). In
the case of any Fundamental Change, the Company shall require the successor or
acquiring corporation to assume the obligation to perform each and every
covenant and condition of this Plan Agreement to be performed and observed by
the Company and all liabilities and obligations of the Company hereunder.
(c) Other Equitable Adjustments. If any event occurs as to which the
other provisions of this Section 12 are not strictly applicable (or if strictly
applicable would not fairly protect the rights of the Optionees in accordance
with the basic intent and principles of such provisions) but, in the reasonable
opinion of the Committee, an adjustment should be made to fairly protect the
rights of Optionees in
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accordance with the basic intent and principles of such provisions, then the
Company shall appoint a firm of independent certified public accountants (which
may be the regular auditors of the Company) of recognized national standing,
which shall give its opinion upon the adjustment, if any, to be made to protect
the Optionees against dilution on a basis consistent with the basic intent and
principles established in the other provisions of this Section 12. Upon receipt
of such opinion, the Company shall forthwith make the adjustments, if any,
described therein, provided such equitable adjustments under this Section 12(c)
would not result in a charge to the Company's earnings pursuant to applicable
financial accounting principles.
(d) Notice of Adjustment. Upon any adjustment of the Exercise Prices
or of the number of shares issuable upon the exercise of the Options, then and
in each such case the Company shall promptly deliver a notice to each Optionee
of the adjustment and a copy of a certificate of either the Committee or a firm
of independent public accountants selected by the Committee (who may be the
regular accountants employed by the Company), which certificate shall state the
Exercise Prices resulting from such adjustment and the increase or decrease, if
any, in the number of shares issuable at such prices upon the exercise of each
Option, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(e) Other Notices. In case at any time:
(i) the Company shall declare any cash dividend on its Common
Stock;
(ii) the Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution (other than regular cash dividends) to
the holders of its Common Stock;
(iii) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or
other rights;
(iv) the Company shall authorize the distribution to all holders
of its Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of earnings or earned surplus or
dividends payable in Common Stock);
(v) there shall be any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation or
merger of the Company with another corporation (other than a subsidiary of the
Company in which the Company is the surviving or continuing corporation and no
change occurs in the Company's Common Stock), or sale of all or substantially
all of its assets to, another entity;
(vi) there shall be a voluntary or involuntary dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors, or winding up
of the Company; or
(vii) the Company proposes to take any other action or an event
occurs which would require an adjustment of the Exercise Prices pursuant to
this Section 12;
then, in any one or more of such cases, the Company shall give written notice
to each Optionee who is not then an executive officer or director of the
Company, addressed to each such Optionee at the address of the Optionee shown
on the books of the Company, of (1) the date on which the books of the Company
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shall close or a record shall be taken for such dividend, distribution or
subscription rights, or (2) the date (or, if not then known, a reasonable
approximation thereof by the Company) on which such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
bankruptcy, assignment for the benefit of creditors, winding up or other action,
as the case may be, shall take place. Such notice shall also specify (or, if not
then known, reasonably approximate) the date as of which the holders of Common
Stock or record shall participate in such dividend, distribution or subscription
rights or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, bankruptcy, assignment
for the benefit of creditors, winding up or other action, as the case may be.
Such written notice shall be given at least ten days prior to the action in
question and not less than ten days prior to the record date or the date on
which the Company's transfer books are closed in respect thereto.
(f) Adjustments below Par Value. Before taking any action which would
cause an adjustment pursuant to this Section 12 to reduce the Exercise Prices
below the then par value (if any) of the shares of Common Stock issuable upon
the exercise of Options, the Company will take any corporate action which may,
in the opinion of its counsel (which may by counsel employed by the Company),
be necessary in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock at the Exercise Prices as so adjusted.
(g) Shares of Common Stock. For the purpose of this Section 12, the
terms "shares of Common Stock" shall mean (i) the class of stock designated as
the Common Stock of the Company at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or reclassifications of
such shares consisting solely of changes in par value, or from par value to no
par value, or from no par value to par value. In the event that at any time, as
a result of an adjustment made pursuant to this Section 12, the Optionees shall
become entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other shares so issuable upon
exercise of each Option and the Exercise Prices with respect to such shares
shall be subject to adjustment from time to time in a manner on the terms as
nearly equivalent as practicable to the provisions with respect to the Options
contained in this Section 12, and the provisions of this Section 12 shall apply
on like terms to any such other securities.
13. Amendment of Plan Agreement
(a) This Plan Agreement may not be revised or amended without the
written consent of the Company and each Optionee who holds an outstanding
Option subject to such proposed revision or amendment, provided further, that
any such amendment or revision shall also be subject to any applicable
stockholder approval requirements. Notwithstanding the foregoing, this Plan
Agreement may not be amended more than once every six months, other than to
comport with changes in the Code, ERISA or the rules thereunder.
(b) Except as provided in Section 12 hereof, no modification may be
made to the Options except in compliance with Rule 16b-3.
14. Section 16 of the Exchange Act
(a) It is the intent of the Company that this Plan Agreement comply in
all respects with Rule 16b-3 in connection with the Options granted hereunder.
Accordingly if any provision of this Plan Agreement does not comply with Rule
16b-3 as then applicable to Optionees, then, with the written consent of
Optionees, such provision shall be construed or deemed amended to the extent
necessary to
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conform to such requirements with respect to the Optionees.
(b) Unless an Optionee could otherwise transfer an Option or the
shares of Common Stock issued upon exercise of an Option granted under this
Plan Agreement without incurring liability under Section 16(b) of the Exchange
Act, at least six months shall elapse from the Grant Date to the date of
disposition of any Common Stock issuable upon exercise of any Option hereunder.
15. Notices.
Any notice that the Company is required or may desire to give to
Optionees hereunder shall be in writing and may be served by delivering it to
Optionees, or by sending it to Optionees by certified mail, return receipt
requested (effective five days after mailing) or overnight delivery of the same
by delivery service capable of providing verified receipt (effective the next
business day) or facsimile (effective twenty-four hours after receipt is
confirmed by person or machine), at the addresses set forth below, or such
substitute addresses as Optionees may from time to time designate by notice to
the Company. Any notice that the Optionees are required or may desire to serve
upon the Company hereunder shall be in writing and may be served by delivering
it personally or by sending it certified mail, return receipt requested or
overnight delivery, or facsimile (with receipt confirmed by person or machine)
to the address set forth below, or such substitute address as the Company may
from time to time designate by notice to Optionees. Such notices by Employee
shall be effective at the same times as specified in this Section 15 for
notices by the Company.
Xxxxxx X. Xxxxxx: Xxxxxx X. Xxxxxx
00000 Xxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxx Little: Xxxxx Xxxxxxxx Little
00000 Xxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
The Company: OVERSEAS FILMGROUP, INC.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 9069
Attention: Corporate Secretary
(fax) (000) 000-0000
17. Governing Law; Assigns.
This Plan Agreement and the Options issued hereunder shall be deemed
to be a contract made under the laws of Delaware and for all purposes shall be
governed by and construed in accordance with the internal laws of such state,
regardless of the law of choice of law of that or any other jurisdiction. This
Plan Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Plan Agreement to be
executed as of the date first set forth above.
OVERSEAS FILMGROUP, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxx
----------------------------------
XXXXXX X. XXXXXX
Social Security No.:
--------------
/s/ Xxxxx Xxxxxxxx Little
----------------------------------
XXXXX XXXXXXXX LITTLE
Social Security No.:
--------------
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EXHIBIT A
EXERCISE NOTICE
OVERSEAS FILMGROUP, INC,
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Re: Exercise of Stock Option
Ladies and Gentlemen:
Pursuant to Section 4 of that certain OVERSEAS FILMGROUP, INC. 1996
SPECIAL STOCK OPTION PLAN AND AGREEMENT (the "Plan Agreement") between the
undersigned and OVERSEAS FILMGROUP, INC., a Delaware corporation (the
"Company"), the undersigned hereby elects to exercise options granted thereby
to purchase ___________ shares of Common Stock of the Company at a price of $
_______ per share. Accompanying this Notice is the payment in full for such
shares in the following manner permitted by Section 4 of the Plan Agreement:
(check one and fill in blanks)
CHECK HERE
[ ] (i) $___________ in cash or by certified check or cashier's check
payable to the order of the Company;
[ ] (ii) $___________ by cancellation of indebtedness (including principal and
accrued interest) in the amount of $___________ owed by the Company to the
undersigned (which indebtedness may include the Merger Note (as defined in
Section 4(a)(ii) of the Plan Agreement));
[ ] (iii) $___________ by delivery of _________ shares of Common Stock of the
Company, which have an aggregate Current Market Price determined in accordance
with Section 9 of the Plan Agreement of $____________which shares are
beneficially owned by the undersigned and, if applicable, by ____________ and
have been so beneficially owned for a least six (6) months prior to the date
hereof;
[ ] (iv) $___________ through the special sale and remittance procedure
pursuant to which, attached hereto are the following: (i) irrevocable written
instructions to the Company-designated brokerage firm in the form supplied to
the undersigned pursuant to the Plan Agreement and (ii) irrevocable written
instructions to the Company to deliver the shares underlying the Options being
exercised herewith to deliver such shares to the Company-designated brokerage
firm in the form supplied to the undersigned pursuant to the Plan Agreement;
[ ] (v) $___________ through a combination of the payment methods set forth
above. (Check each payment method being used and indicate the amount of the
aggregate exercise price being paid pursuant to each method.
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[ ] (vi) $___________ in the manner described in the addendum to this Exercise
Notice, which manner has been approved by the Committee described in Section
1(b) of the Plan Agreement.
Dated:
---------------------------- ----------------------------------------
Signature
----------------------------------------
Print Name
----------------------------------------
Please print here the exact name desired
to be on the stock certificate and the
records of the Company.
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