OPTION AGREEMENT, granted April 1, 1997, between SPICE ENTERTAINMENT
COMPANIES, INC. (the "Company"), and [OPTIONEE] (the "Optionee").
RECITALS
Optionee is employed as the [TITLE] of the Company, pursuant to an
Employment Agreement effective as of January 1, 1997 (the "Employment
Agreement"). The Stock Option Committee of the Board of Directors of the Company
has allocated a pool of options for the Company's senior officers, to be tied to
theirs and the Company's performance.
In consideration of the Optionee's past and future services to the
Company, the Optionee hereby is granted, the right to purchase [# OF OPTIONS]
shares of its commons stock, par value $.01 per share (the "Common Shares").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. Grant of Option. In consideration of the foregoing, the
Company hereby grants Optionee the right and option (the "Option") to purchase
all or any part of an aggregate of 21,000 Common Shares on the terms and
conditions herein set forth.
2. Exercise Price. The purchase price of the Common Shares
subject to the Option shall be $2.125 per share, the fair market value of such
Common Shares as determined on the date hereof.
3. Limitation of Exercisability of Options.
3.1 The Option shall be exercisable as follows:
3.1.1 As to that portion of the Option to acquire
[1/2 # OF OPTIONS] Common Shares, the Option shall be
exercisable on the earlier of: (i) [EARLY VESTING CRITERIA]or (ii) in six years
from the date of grant if the Optionee is still employed as an officer by the
Company or an affiliate thereof.
3.1.2 As to that portion of the Option to acquire
[1/2 # OF OPTIONS] Common Shares, the Option shall be exercisable on the earlier
of (i) upon satisfaction of such conditions as shall be reasonably determined by
the Board of Directors and/or the Stock Option Committee, after the completion
of the Company's budget for 1998 or (ii) in six years from the date of grant if
the Optionee is still employed as an officer by the Company or an affiliate
thereof.
3.2 Any dispute relating to such determination shall be
settled by arbitration pursuant to Section 10 of the Employment Agreement with
such provision surviving termination of such agreement.
3.3 In the event that there is a "Change in Control" as
defined in the Employment Agreement or if the Employment Agreement is terminated
for any reason other than Cause (as that term is defined in the Employment
Agreement), all of the Common Shares covered hereby shall be immediately
exercisable.
3.4 Notwithstanding any provision of the Employment Agreement
to the contrary, if all or any portion of the Option is not exercisable on the
date the Optionee's employment is terminated by the Optionee or the Company for
any reason, such Option, or any portion thereof, shall not, as a consequence of
such termination become exercisable.
4. Expiration of Option. The Option shall not be exercisable
after March 31, 2007.
5. No Rights as Shareholder. The Optionee shall have none of the
rights of a stockholder with respect to any of the Common Shares subject to the
Option until such shares shall be issue to him upon the exercise of the Option.
6. Adjustments Upon Changes in Capitalization.
6.1 In the event that prior to the exercise of the Option in
full, the outstanding common stock of the Company is changed by reason of
reorganization, merger, consolidation recapitalization, reclassification, stock
split-up, combination of shares stock dividends or the like, an appropriate
adjustment shall be made by the Board of Directors in the number of shares and
option price per share subject to the unexercised portion of the Option. If the
Company shall be reorganized, consolidated or merged with another corporation,
or if all or substantially all of the assets of the Company shall be sold or
exchanged, the Optionee shall, at the time of issuance of the stock under such a
corporate event, be entitled to receive upon the exercise of his Option the same
number and kind of shares of stock or the same amount of property, cash or
securities as he would have been entitled to receive had Optionee been a holder
of the number of Common Shares covered by his Option immediate prior to such
event.
6.2 Any adjustment in the number of shares shall apply
proportionately to only the unexercised portion of the Option granted hereunder.
If fractions of a share would result from any such adjustment, the adjustment
shall be revised to the next lower whole number of shares.
7. Method of Exercise of Option.
7.1 Subject to the terms and conditions of this Agreement, the
Option may be exercise by written notice to the Company at its principal office,
presently located at 000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Secretary.
Such notice shall state the election to exercise the Option and the number of
Common Shares in respect of which it is being exercised, shall be signed by the
person or persons so exercising the Option and shall either be accompanied by
payment in full, by check payable to the order of the Company, of the purchase
price of said share in which event the Company shall deliver a certificate or
certificates representing said shares as soon as practicable after the notice
shall be received by the Company. The certificate or certificates for the Common
Shares as to which the option shall have been so exercised shall be registered
in the name of the person or person so exercising the Option and shall be
delivered as aforesaid to or upon the written order of the person or persons
exercising the Option.
7.2 In lieu of cash payment, with the consent of the Board of
Directors, the Optionee may elect to deliver either (i) a bank or certified
check equal to the aggregate par value of the Common Shares being purchased with
the balance of the purchase price therefore being paid in the form a Note for
such amount as approved by the Board or (ii) shares of the company's common
stock owned by the Optionee having a fair market value (determined in the sole
discretion of the Board of Directors) equal to such purchase price. The Option
shall be deemed to have been exercised with respect to any particular Common
Shares if, and only if, the preceding provision of this Section 7 and the
provision of Section 8 hereof shall have been complied with, in which event the
Option shall be deemed to have been exercised.
8. Registration Rights. Optionee (including any successor or
assign) shall have the registration rights set forth in Section 8(b) and 8(c) of
the Employment Agreement. Such provisions shall survive termination of the
Employment Agreement for any reason.
9. Restrictions on Issuance.
9.1 Unless prior to the exercise of the Option the Common
Shares issuable upon such exercise have been registered with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, the
notice of exercise shall be accompanied by a representation or agreement of the
individual exercising the Option of the Company to the effect that such shares
are being acquired for investment and not with a view to the resale or
distribution thereof or such other documentation as may be required by the
Company, unless in the opinion of counsel to the Company, such representation,
agreement or documentation is not necessary to comply with said Act.
9.2 The Company shall be not obligated to issue and deliver
any Common Shares until they have been listed on each securities exchange on
which Common shares may then be listed nor until there has been a qualification
under or compliance with such state or federal laws, rules or regulations as the
Company may deem applicable. The Company shall use reasonable efforts to obtain
such listing, qualification and compliance.
9.3 The Common Shares issued upon exercise of the Option
shall bear the following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE
OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION
IS NOT REQUIRED.
10. Company Obligation. The Company shall at all times during the term
of the Option reserve and keep available such number of Common Shares as will be
sufficient to satisfy the requirement s of this Agreement, shall pay all
original issue and/or transfer taxes with respect to the issue and/or transfer
of shares by the Company pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith and will from time
to time use its best efforts to comply with all laws and regulations which in
the opinion of counsel for the Company shall be applicable thereto.
11. Transferability of Option. The Option shall not be
transferable.
12. Definition of Certain Terms. As used herein, the Optionee
shall include the individual named Optionee, as well as any successor or
assignees.
13. Governing Law. This Option Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
14. Conflict. In the event of any conflict between the Plan
and the Option, the terms of the Plan shall take precedence.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officers thereunto duly authorized, and the Optionee has
hereunto set his hand and seal, all on the day and year first above written.
SPICE ENTERTAINMENT COMPANIES, INC.
ATTEST:
By:
_________________________________ ________________________________
Name: J. Xxxxx Xxxxxxx Name:
Title: President and CEO Title:
AGREED TO AND ACCEPTED:
_________________________________
[OPTIONEE]
