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EXHIBIT 4.5
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is dated as of the 1st day of April, 1996,
by and between THE PRISM NETWORK, a Florida corporation (the "Company"), and
Xxxx X. Xxxxxx (the "Optionee").
1. Definitions.
1.1 "Affiliate" means any entity controlling, controlled
by or under common control with the Company.
1.2 "Board" means the Board of Directors of the Company.
1.3 "Common Stock" means the shares of common stock, par
value $0.01 per share, of the Company.
1.4 "Exercise Price" means $1.74479 per Option Share,
which the Board has determined to be the per share fair market value of the
Common Stock as of the date of this Agreement.
1.5 "Option Shares" has the meaning ascribed to it in
Section 2.
1.6 "Options" has the meaning ascribed to it in
Section 2.
2. Grant; Number of Shares. The Company hereby grants to the
Optionee options (the "Options") to purchase an aggregate of twenty-five
thousand (25,000) shares (the "Option Shares") of Common Stock at the Exercise
Price, on the terms and subject to the conditions set forth herein. The Options
are not intended to be "incentive stock options" as defined in Section 422 of
the Internal Revenue Code of 1986, as amended. The Optionee shall not have any
of the rights of a shareholder of the Company with respect to any Option Shares
unless and until the Optionee has paid the Exercise Price with respect thereto
and the conditions set forth in Section 4 have been satisfied.
3. Termination. The Options will terminate upon the earliest of
(i) the full exercise of the Options, or (ii) ten (10) years from the date of
this Stock Option Agreement.
4. Exercise of Options.
4.1 Exercisability. The Options shall be exercisable
immediately upon the execution of this Stock Option Agreement.
4.2 Notice. The Optionee may exercise vested Options by
delivering written notice of such exercise to the Company, accompanied by
payment of the Exercise Price as described in Section 4.3. Such written notice
shall be deemed sufficient for this purpose only if delivered to the Company at
its principal office and only if such written notice states the number of
Options being exercised. The date of exercise of the Options with respect
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to the Option Shares specified in the notice shall be the date on which the
Company receives the notice and payment.
4.3 Payment and Other Conditions. On the exercise of any
Option, the written notice described in Section 4.2 must be accompanied by a
check payable to the Company, in the amount of the Exercise Price of all Option
Shares purchased pursuant to such exercise of the Options and an amount equal to
the federal, state and local taxes, if any, required to be withheld as a result
of such exercise. At Optionee's written election delivered as part of the
written notice described in Section 4.2, all or any portion of the Exercise
Price and applicable taxes due to the Company may be paid by reducing the number
of Option Shares issued upon such exercise by the number of whole Option Shares
having a fair market value, as determined by the Board, on the date of exercise
most nearly equal to (but not in excess of) the amount due to the Company, and
any remaining balance shall be paid by check.
Upon the request of the Company, the Optionee shall return this Stock
Option Agreement to the Company and the Company may endorse thereon a notation
of the exercise and return this Stock Option Agreement to the Optionee.
4.4 Issuance of Stock Certificates. Upon satisfaction of
the conditions of Sections 4.2 and 4.3, the Company shall promptly deliver to
the Optionee a certificate or certificates for the number of shares of Common
Stock in respect of which Options have been exercised, legended to reflect the
agreements and conditions applicable to such Shares referred to in Section 6 and
such other restrictions as the Board shall reasonably determine or are required
by applicable law. The Certificate legend shall also reflect the Shareholder
Agreement dated April 1, 1996 signed by Optionee, and which agreement shall
continue to govern the Optionee's rights with regard to said stock.
5. Nontransferability of Options. No Option shall be transferable
by the Optionee otherwise than by will or the laws of descent and distribution.
6. Specific Restrictions Upon Option Shares. The Optionee hereby
agrees with the Company that the Optionee shall acquire the Option Shares for
investment purposes only and not with a view to resale or other distribution
thereof to the public in violation of the Securities Act of 1933, as amended
(the "Securities Act"), and shall not dispose of any Option Shares in any
transaction which, in the opinion of counsel to the Company, would violate the
Securities Act, or the rules and regulations thereunder, or any applicable state
securities or "blue sky" laws.
7. Adjustment in Shares Subject to the Option. In the event of a
merger or consolidation of the Company in which the Company is not the surviving
corporation and in which the consideration received by holders of Common Stock
consists of securities of the surviving corporation or any affiliate, or in the
event of a
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statutory share exchange (each a "Transaction"), (i) the Option shall
automatically become exercisable for that number of securities (rounded to the
near whole share) that the Optionee would have received in the Transaction had
the Optionee exercised the Options immediately prior to the Transaction and
participated in the Transaction as a holder of Common Stock, and (ii) the
Exercise Price per new security shall be adjusted proportionately. For example,
if as a result of the Transaction two shares of common stock of the surviving
corporation are issued with respect to each share of Common Stock outstanding
immediately prior to the Transaction, (i) each Option Share issuable upon
exercise of the Options shall consist after the Transaction of two shares of
common stock of the surviving corporation, and (ii) the exercise price per share
after the Transaction shall be reduced to one half of the exercise price in
effect immediately prior to the Transaction. In addition, in the event that the
Board shall determine that any dividend or other distribution (whether in the
form of cash, stock of the Company, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, sale of substantially all the Company's assets, split-up,
spin-off, combination, repurchase, or exchange of securities of the Company, or
other similar corporate transaction or event, affects the Option Shares issuable
on exercise of the Option such that an adjustment is determined by the Board to
be appropriate in order to prevent dilution or enlargement of the benefit or
potential benefit intended to be made available under this Agreement, then the
Board shall, in such manner as it may deem equitable, adjust the number and type
of Option Shares awarded pursuant to this Stock Option Agreement and/or the
terms, conditions, or restrictions of this Stock Option Agreement.
8. Registration of Shares; Limitations on Exercisability.
Anything in this Stock Option Agreement to the contrary notwithstanding, the
obligation of the Company to sell or deliver shares of Common Stock with respect
to the Options shall be subject to all applicable laws, rules and regulations,
including all applicable federal and state securities laws, securities exchange
rules, or listing requirements and the obtaining of all approvals by
governmental agencies as may be deemed necessary by the Board, and the Company
shall use its reasonable efforts to take all necessary actions to comply with
such requirements.
9. Notices. Any notice required or permitted under this Stock
Option Agreement shall be given at the address for each party indicated on the
signature page hereof.
10. Successors and Assigns. Neither this Agreement nor any Options
granted hereunder may be assigned except by will or the laws of descent and
distribution, and during Optionee's lifetime Options may be exercised only by
Optionee. This Agreement shall be binding on Optionee's permitted assignees.
11. Miscellaneous. No provisions of this Stock Option Agreement
may be modified, waived or discharged unless such
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modification, waiver or discharge is agreed to in writing signed by both the
Optionee and such officer of the Company as may be specifically designated by
the Board. No waiver by either party hereto at any time of (i) any breach by the
other party hereto of, or (ii) compliance with, any condition or provision of
this Stock Option Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar conditions or provisions at the same time or
at any prior or subsequent time. The validity, interpretation, construction and
performance of this Stock Option Agreement shall be governed by the laws of the
state of Florida without regard to its conflicts of law principles.
12. Severability. The invalidity or unenforceability of any
provision or provisions of this Stock Option Agreement shall not affect the
validity or enforceability of any other provision of this Stock Option
Agreement, which shall remain in full force and effect.
13. Counterparts. This Stock Option Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
14. Entire Agreement. This Stock Option Agreement sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any party hereto or by any officer, employee or representative of
any party hereto; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Stock Option
Agreement on the day and year first above written.
THE PRISM NETWORK, INC.,
a Florida corporation
By: /s/ XXXXX X. XXXXXXXXXXX, XX.
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Xxxxx X. Xxxxxxxxxxx, Xx.
Its: President
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
