Exhibit 4.5
NEITHER THIS OPTION NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF A
REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION,
UNDER SAID ACT.
OPTION ASSUMPTION AGREEMENT
AGREEMENT dated as of August 12, 1999, by and between AMERICA ONLINE,
INC., a Delaware corporation with its principal office at 00000 XXX Xxx, Xxxxxx,
Xxxxxxxx 00000 (the "Company"), and Xxxxxx X. Xxxx, an individual currently
residing at 000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000 (the "Holder").
1. Existing Stock Option. The Company hereby acknowledges that Holder
was granted an option (the "Option") to acquire 300,000 shares of the common
stock of Nullsoft, Inc. ("Nullsoft"), for an aggregate exercise price of $3,000,
pursuant to Section 1(d) of the Employment Agreement dated October 1, 1998
between Nullsoft, Inc. and Holder. The Company further acknowledges that the
consummation of the acquisition of Nullsoft by the Company constituted the sale
or transfer of majority ownership of Nullsoft and, consequently, the Option
automatically vested by its terms. The Company further acknowledges that the
Option has been assumed by the Company and converted to an option to purchase
shares of the Company's common stock, $.01 par value (the "Common Stock"), in
accordance with the provisions of the Agreement and Plan of Reorganization
related to the acquisition and, following such conversion, that the Holder is
entitled, subject to the terms set forth below, to purchase an aggregate of
22,272 shares of the Common Stock at an exercise price equal to $0.14 per share
(the "Assumed Option").
2. Assumed Option.
(a) The Assumed Option shall be exercisable by the Holder at
any time, or from time to time, in whole or in part, upon submitting a Notice of
Exercise signed by the Holder, together with payment of the exercise price to
the Company by cash, check or wire transfer.
(b) Any unexercised portion of the Assumed Option shall expire
at the close of business on October 1, 2008 (the "Expiration Date"). The Holder
may exercise the Assumed Option by notice to the Company signed by the Holder
and setting forth the number of shares of Common Stock to which the exercise
relates, accompanied by payment of the exercise price therefor plus the amount
required to be withheld by the Company in connection with such exercise under
federal, state and local tax laws. The Company shall deliver to the Holder one
or more certificates registered in the name of the Holder representing the
shares of Common Stock purchased by the Holder.
(c) If, prior to the Expiration Date, there shall occur any
stock dividend, stock split, combination of shares, reclassification or
recapitalization with respect to the Common Stock or a consolidation or merger
as to which the Company is not the surviving corporation, then to the extent the
Assumed Option is unexercised, the number of shares of Common Stock and the
exercise price shall be equitably adjusted.
(d) The shares of Common Stock received upon exercise of the
Option shall not be transferable by the Holder except in compliance with the
Securities Act of 1933, as amended, and any applicable state laws. All
certificates for shares of Common Stock purchased under this Agreement in an
unregistered transaction shall bear the following legend (and such other
restrictive legends as are required or deemed advisable under any state statute)
to reflect such restriction:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), HAVE BEEN
ACQUIRED FOR INVESTMENT, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS
IN EFFECT WITH REGARD THERETO OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
3. Nonassignability. No right or benefit under this Agreement,
including the Assumed Option, shall be assigned, transferred, pledged, or
encumbered by the Holder.
4. Notices. Any notice, request, or other communication given
hereunder, other than a notice of exercise of the Assumed Option, shall be in
writing and if given by the Holder to the Company, shall be sent by certified
registered mail, postage prepaid, addressed to the Company at 00000 XXX Xxx,
Xxxxxx, XX 00000, Attn: Vice President of Human Resources, and if given by the
Company to the Holder shall be delivered personally or sent by certified or
registered mail, postage prepaid, addressed to the Holder at his address set
forth above. Notices, requests and other communications shall be deemed to be
given when received, which, in the case of notice given by mail, shall be the
time indicated on the receipt therefor.
5. Notice of Exercise of Assumed Option. The Holder shall submit the
Notice of Exercise of the Assumed Option to the Manager, Stock Group, AOL Human
Resources Department, in accordance with the procedures established and then in
place for the exercise of options by employees or former employees of the
Company, as applicable. The Holder may address questions related to such
procedure to "Stock Help" at (000) 000-0000.
6. Entire Agreement. This Agreement contains the entire agreement among
the parties hereto with respect to the assumption and terms of stock options
issued by Nullsoft to Holder and supersedes all prior agreements or
understandings, written or oral, among the parties with respect thereto. The
parties hereto acknowledge that this Agreement does not modify or supersede in
any respect the Agreement and Plan of Reorganization related to the acquisition
of Nullsoft by the Company. The parties further agree that any agreement between
the parties with respect to the issuance of options in substitution of the
Option, including the Option Agreement (the "First Option Agreement") by and
between the Company and Holder, dated as of May 28, 1999 which may have been
mistakenly entered into and which mistakenly provided for the issuance to Holder
of an option to purchase 22,286 shares of the Common Stock, is now deemed null
and void. This provision is not intended to and does not supersede or modify the
terms of any agreement between the parties entered into in connection with
options granted by the Company to the Holder under the Company's 1992 Employee,
Director and Consultant Stock Option Plan on or after the date of this
Agreement.
7. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of law principles thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Holder
and on behalf of the Company by its duly authorized officer, all as of the day
and year first above written.
AMERICA ONLINE, INC.
By:________________________
HOLDER:
/s/ XXXXXX X. XXXX
Xxxxxx X. Xxxx
