EXHIBIT 4.1
NMC CORP.
STOCK OPTION AGREEMENT
This Agreement, dated as of December 19, 1996 by and between NMC
Corp., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxx (the
"Optionee").
W I T N E S S E T H:
WHEREAS, the Company considers it to be in its best interests and in
the best interests of its stockholders that the Optionee be given the
opportunity to acquire a proprietary interest in the Company by possessing an
option to purchase certain shares of common stock, par value $.062/3 per share
(the "Common Stock"), of the Company in accordance with the provisions set forth
below;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, it is agreed by and between the parties as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee the right,
privilege and option (the "Option") to purchase all or any part of 55,000 shares
of Common Stock (the "Option Shares") at a purchase price of $.062/3 per share
in the manner and subject to the conditions provided herein.
2. TIME OF EXERCISE OF OPTION. The Option is exercisable in full
commencing on the date hereof, subject to the terms of this Agreement.
3. METHOD OF EXERCISE. The Option shall be exercised by written
notice directed to the Company at the Company's principal place of business,
accompanied by a check in payment of the option price for the number of Option
Shares specified and paid for in full. The Company shall make prompt delivery of
such Option Shares once payment clears, provided that if any law or regulation
requires the Company to take any action with respect to the Option Shares
specified in such notice before the issuance thereof, then the date of delivery
of such Option Shares shall be extended for the period necessary to take such
action. If the Optionee fails to pay for any of the Option Shares specified in
such notice or fails to accept delivery thereof, the Optionee's right to
purchase such Option Shares may be terminated by the Company. The date specified
in the Optionee's notice as the date of exercise shall be deemed the date of
exercise of the Option, provided that payment in full for the Option Shares to
be purchased upon such exercise shall have been received by such date. No
fractional shares may be purchased hereunder.
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4. CASHLESS EXERCISE. At any time during the term, the Optionee may,
at its election, exchange this Option, in whole or in part (an "Option
Exchange"), into the number of Option Shares determined in accordance with this
paragraph 4 by surrendering this Option at the principal office of the Company,
accompanied by a notice stating the Optionee's intent to effect such exchange,
the number of Option Shares to be exchanged and the date on which the Optionee
requests that such Option Exchange occur (the "Notice of Exchange"). The Option
Exchange shall take place on the date specified in the Notice of Exchange or, if
later, the date the Notice of Exchange is received by the Company (the "Exchange
Date"). Certificates for the Option Shares issuable upon such Option Exchange
and, if applicable, a new Option of like tenor evidencing the balance of the
Option Shares remaining subject to this Option, shall be issued as of the
Exchange Date and delivered to the Optionee within seven (7) business days
following the Exchange Date. In connection with any Option Exchange, this Option
shall represent the right to subscribe for and acquire the number of Option
Shares (rounded to the next highest integer) equal to (i) the number of Option
Shares specified by the Optionee in its Notice of Exchange (the "Total Number")
less (ii) the number of Option Shares equal to the quotient obtained by dividing
(A) the product of the Total Number and the then existing Exercise Price by (B)
the current market value of a share of Common Stock.
5. TERMINATION OF OPTION. The Option and all rights granted by this
Agreement, to the extent such rights have not been exercised, will terminate and
become null and void ten (10) years from the date hereof.
6. LIMITATIONS ON TRANSFER. The rights granted to the Optionee
hereunder may not be transferred, pledged, assigned or hypothecated in any way.
7. ADJUSTMENTS IN EVENT OF CHANGE IN COMMON STOCK. In the event of
any change in the Common Stock by reason of any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares, or rights offering to purchase Common Stock at a price
substantially below fair market value, or of any similar change affecting the
Common Stock, the number and kind of Option Shares subject to Option hereunder
and the purchase price per Option Share thereof shall be appropriately adjusted
consistent with such change in such manner as the Committee may deem equitable.
8. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall have no
rights as a stockholder of the Company with respect to the Option Shares until
full payment of the option price and delivery of such Option Shares as herein
provided. Nothing contained herein or in the Plan shall be construed as creating
or evidence of any agreement on the part of the Company to employ or retain the
Optionee in any capacity.
9. INVESTMENT REPRESENTATION. This Option may not be exercised if
the issuance of shares of Common Stock of the Company upon such exercise would
constitute a violation of any applicable Federal or state securities or other
laws or regulations. The Optionee, as a condition to the Optionee's exercise of
this Option, shall represent to the Company that the
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shares of Common Stock that the Optionee acquires hereunder are being acquired
by the Optionee for investment and not with a view to distribution or resale
thereof, unless counsel for the Company is then of the opinion that such a
representation is not required under the Securities Act of 1933, as amended, or
any other applicable law, regulation or rule of any governmental agency.
10. WAIVER; ENTIRE AGREEMENT. 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. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof.
11. GOVERNING LAW. The validity, construction, interpretation and
effect of this Agreement shall exclusively be governed by and determined in
accordance with the internal laws of the State of Delaware. which is
the sole jurisdiction in which any issues relating to this
Agreement may be litigated.
12. BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date and year first above written.
NMC CORP.
By:
Xxxxxx X. Xxxxxxxxxx
President
THE OPTIONEE
Xxxxxx X. Xxxxx
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