EXHIBIT 10.28
THE OPTION GRANTED PURSUANT TO THIS STOCK OPTION AGREEMENT (THE
"OPTION") AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE OPTION OR THE SHARES UNDER
THE SECURITIES ACT, OR AN OPINION OF COUNSEL, WHICH IS SATISFACTORY TO
THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
HOB ENTERTAINMENT, INC.
STOCK OPTION AGREEMENT
----------------------
This Stock Option Agreement (this "Agreement") is effective as of
January 31, 2000, between HOB Entertainment, Inc., a Delaware corporation (the
"Company"), and Wm. Xxxxxxxxxxx Xxxxx (the "Optionee").
In connection with the execution of that certain Advisory Agreement of
even date herewith by and between Optionee, the Company and the other parties
thereto (the "Advisory Agreement"), and the mutual promises contained therein,
and the mutual covenants hereinafter contained, the parties hereto agree as
follows:
1. Grant of Option. On the terms and conditions set forth in this
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Agreement, the Company hereby grants to the Optionee this option ("Option")
which may be exercised from time to time to purchase up to an aggregate of
2,675,000 shares of common stock, $0.0001 par value per share, of the Company
(the "Shares"), which Shares constitute not less than 1.5% of the outstanding
shares of the Company on a fully diluted basis as of the closing of the
Company's acquisition of Universal Concerts, Inc. on September 10, 1999, at a
price of $1.62 per Share (the "Option Price"). This Option is not intended to
qualify as an "incentive stock option" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), and shall be construed accordingly.
2. Right to Exercise.
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a. Subject to the terms and conditions of this Agreement, 25% of
the Shares subject to this Option shall vest and become exercisable on each of
September 10, 2000, September 10, 2001, September 10, 2002, and September 10,
2003. The percentage of Shares for
which this Option has become exercisable at any particular time is referred to
as the "Vested Percentage".
b. As used in this Agreement, the term "Investor Common Stock"
shall mean, with respect to each Investor (as defined in the Advisory
Agreement), the shares of the Common Stock of the Company held by such Investor
on the date hereof (assuming for this purpose the conversion and exercise by
such Investor of all securities held by the Investor that are convertible into
or exercisable for shares of Company Common Stock other than the 12% Senior
Redeemable Preferred Stock of the Company and the Senior Convertible Preferred
Stock of the Company). The term "Transferred Percentage" shall mean, with
respect to each Investor, the percentage of Investor Common Stock that has been
transferred, or is subject to a binding agreement to transfer, to a person or
entity other than such Investor or an affiliate of such Investor. If at any time
that this Agreement shall be in effect, an Investor's Transferred Percentage
exceeds the Vested Percentage, the Vested Percentage shall be increased to an
amount equal to such Transferred Percentage.
c. The terms of the Option with respect to vesting are no less
favorable to the Optionee than the terms of the stock option held by Xxx
Xxxxxxxx.
3. No Transfer.
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This Option is not transferable by Optionee except to an inter
vivos trust or similar entity for the benefit of Optionee's family in connection
with estate planning or by will or the laws of descent and distribution. During
the Optionee's lifetime, this Option is only exercisable by Optionee or the
trustee or other representative of the aforementioned trust.
4. Exercise Procedures.
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a. Notice of Exercise. The Optionee or the Optionee's representative
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may exercise this Option by giving written notice to the Board of Directors of
the Company in the form annexed hereto as Exhibit A. The notice shall specify
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the election to exercise this Option, the number of Shares with respect to which
this Option is being exercised and the form of payment. The notice shall be
signed by the person exercising this Option. In the event that this Option is
being exercised by the representative of the Optionee, the notice shall be
accompanied by proof (satisfactory to the Board of Directors of the Company) of
the representative's right to exercise this Option. The Optionee or the
Optionee's representative shall deliver to the Company at the time of giving the
notice, payment in a form provided under Section 5 for the full amount of the
exercise price applicable to that portion of this Option being exercised. If
the Optionee or the Optionee's estate or representative so requests following an
exercise of this Option for less than the full number of Shares purchasable
under this Option, and this Agreement is delivered to the Company at the time of
the request, the Company will register and deliver to the Optionee or the
Optionee's representative a new option agreement that reflects the unexercised
portion of the Shares (but otherwise identical in form), and this Agreement
will be terminated. If the Optionee or the Optionee's representative does not
in any year purchase all or any part of the shares to which the Optionee or the
Optionee's representative is entitled, then the Optionee or the Optionee's
representative has the right
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cumulatively thereafter to purchase any Shares not so purchased and such right
shall continue until this Option terminates or expires.
b. Issuance of Shares. After receiving a proper notice of exercise,
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the Company shall cause to be issued a certificate or certificates for the
Shares as to which this Option has been exercised, registered in the name of the
person exercising this Option and bearing such legends, including the legend in
Section 7 below, as may be appropriate. The Company shall cause such
certificate or certificates to be delivered to or upon the order of the person
exercising this Option.
c. Withholding Taxes. In the event that the Board of Directors of
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the Company determines that the Company is required to withhold foreign,
federal, state or local tax as a result of the exercise of this Option, the
Optionee, as a condition to the exercise of this Option, shall make arrangements
satisfactory to the Board of Directors of the Company to enable the Company to
satisfy all withholding requirements. Any Shares purchased by exercising this
Option shall also be issued subject to condition that the Optionee shall make
the arrangements satisfactory to the Board of Directors of the Company to enable
the Company to satisfy any withholding requirements that may arise in connection
with the disposition of such Shares.
5. Payment for Stock.
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All or part of the exercise price may be paid in (a) lawful
money of the United States of America; (b) other Shares which (i) in the case of
Shares acquired from the Company, have been owned by the Optionee for more than
six (6) months on the date of surrender, and (ii) have a Fair Market Value (as
defined in the 1993 Amended and Restated Stock Option Plan of the Company (the
"Plan")) on the date of surrender equal to the aggregate exercise price of the
Shares as to which this Option is exercised; (c) following the initial public
offering of the Company's securities, delivery of a notice that Optionee has
placed a market sell order with a broker with respect to Shares then issuable
upon exercise of this Option and that the broker has been directed to pay a
sufficient portion of the net proceeds of the sale to the Company in
satisfaction of this Option exercise price, provided, that payment of such
proceeds is then made to the Company upon settlement of such sale; or (d) any
combination of the foregoing methods of payment.
6. Term and Expiration.
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a. Term of Option. This Option shall expire on the day before
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the tenth anniversary of the date hereof, and may be exercised during such term
only in accordance with this Agreement. Subject to Section 6(b) hereof, this
Option may be exercised without regard to Optionee's continued service as a
director.
b. Forfeiture for "cause." This Option shall be forfeited
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immediately upon any event constituting "cause." The term "cause" shall mean
solely any one (or more) of the following: (i) the Optionee 's commission of
any fraud, misappropriation or willful misconduct which causes demonstrable
injury to the Company or a subsidiary or affiliate; or (ii) an act of dishonesty
by
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the Optionee resulting or intended to result, directly or indirectly, in gain or
personal enrichment at the expense of the Company or a subsidiary or affiliate.
This Option shall not be forfeited for any reason except as set forth herein.
7. Securities Law and Other Restrictions.
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a. Restrictions. Regardless of whether the offering and sale of
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Shares have been registered under the Securities Act or have been registered or
qualified under the securities laws of any state, the Board of Directors of the
Company at its discretion (so long as the shares held by the Investors and
members of senior management of the Company are similarly treated) may impose
restrictions upon the sale, pledge or other transfer of such Shares (including
the placement of appropriate legends on stock certificates) if, in the judgment
of the Company and its counsel, such restrictions are necessary or desirable in
order to achieve compliance with any agreement to which the Company is a party,
the Securities Act, the securities laws of any state or any other law or with
restrictions imposed on the Company by its underwriters, or otherwise.
b. Investment Representations. In connection with the
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issuance of this Option and upon exercise hereof, Optionee represents to the
Company the following:
i. Optionee is acquiring this Option for investment for
Optionee's own account only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act of
1933, as amended (the "Securities Act").
ii. Optionee understands that neither this Option nor the
Shares have been registered under the Securities Act by reason of a specific
exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of Optionee's investment intent as expressed herein. In this
connection, Optionee understands that, in view of the Securities and Exchange
Commission ("Commission"), the statutory basis for such exemption may not be
present if Optionee's representations meant that Optionee's present intention
was to hold this Option for a minimum capital gains period under applicable tax
statutes, for a deferred sale, for a market rise, for a sale if the market does
not rise, or for a year or any other fixed period in the future.
iii. Optionee acknowledges and understands that this Option
and the Shares must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
Optionee understands that the certificates evidencing this Option and the Shares
will be imprinted with legends which prohibit the transfer of this Option or the
Shares unless they are registered or such registration is not required in the
opinion of counsel satisfactory to Company. Optionee further acknowledges that
this Option and the Shares are subject to certain contractual transfer
restrictions contained in the Stockholders Agreement (as defined in the Advisory
Agreement).
iv. Optionee represents that he (A) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of his investment in the Option; (B) has received from the
Company all the information he has requested
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and considers necessary or appropriate for deciding whether to acquire the
Option; (C) has had an opportunity to ask questions and receive answers from the
Company regarding the Company, its business, operations, market potential,
capitalization, financial condition and prospects, and the terms and conditions
of the Option; (D) has the ability to bear the economic risks of his investment
in the Option; and (E) is able, without materially impairing his financial
condition, to hold the Option for an indefinite period of time and to suffer
complete loss on his investment.
v. Optionee represents that he is an "accredited investor"
within the meaning of Rule 501 promulgated under the Securities Act.
vi. Optionee represents that (A) he is a natural person, (B)
he has provided bona fide services to the Company and (C) the services provided
by Optionee to the Company were not performed in connection with the offer or
sale of securities in a capital-raising transaction, and do not directly or
indirectly promote or maintain a market for the Company's securities.
c. Investment Intent at Exercise. In the event that the sale of
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Shares is not registered under the Securities Act, but an exemption is available
which requires an investment representation or other representation, it shall be
a condition of exercise of this Option that the Optionee shall represent and
agree at the time of exercise that the Shares being acquired upon exercising
this Option are being acquired for investment, and not with a view to the sale
or distribution thereof, and shall make such other representations as are deemed
necessary or appropriate by the Company and its counsel.
d. Legend. All certificates evidencing Shares acquired under this
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Agreement in an unregistered transaction shall bear the following restrictive
legend (and such other restrictive legends as are required or deemed advisable
under the provisions of any applicable law):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE. THESE SECURITIES MAY
NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933
AND ANY APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY, IN THE
OPINION OF COUNSEL, OF AN EXEMPTION FROM REGISTRATION THEREUNDER"
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e. Administration. Any determination by the Board of Directors
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of the Company, the Company and its counsel in connection with any of the
matters set forth in this Section 7 shall be conclusive and binding on the
Optionee and all other persons.
8. Shares and Adjustments; Additional Rights.
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a. General. The number of Shares and the Option Price are subject
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to appropriate adjustment in the manner provided for by the Plan for stock
splits, stock dividends, recapitalizations, reorganizations or other similar
events affecting the capital structure of the Company. No adjustment, however,
shall result in or entitle Optionee to receive fractional shares.
b. Come Along, Go Along. If any shareholders of the Company
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sell or exchange more than 50% of the outstanding voting stock of the Company in
a single or series of related transactions, if requested by Optionee, the
Company shall use its reasonable commercial efforts to cause the purchaser of
such shares to acquire, and the Optionee agrees to sell, Optionee's pro-rata
portion of the Shares for the same price, terms and conditions that are
applicable to the shares of such controlling shareholder(s) to be transferred.
Notwithstanding anything to the contrary in this Section 8, the provisions
hereof shall not apply to: (a) any sale or other transfer of stock between
shareholders of the Company; (b) any repurchase by the Company of any shares of
Common Stock; (c) any transfer of shares of Common Stock to any inter vivos
trust, or in connection with estate planning or the death of any person; or (d)
any sale pursuant to a public offering. This Section 8(b) shall not be deemed to
modify or amend any of Optionee's rights under the Stockholders Agreement.
c. Stock Option Plan. This Option is a non-qualified stock
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option that has been issued pursuant to the Plan. HOB agrees that, promptly
following any initial public offering of HOB Common Stock pursuant to the
Securities Act, it will prepare, file with the Securities and Exchange
Commission, and use reasonable commercial efforts to cause to become effective,
a registration statement on Form S-8 covering the Shares as well as such other
shares of Common Stock issuable pursuant to the Plan.
d. Information Rights. Until the earliest of the expiration,
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termination, or full exercise of this Option, Optionee shall be entitled to
receive all financial statements and other information distributed to
shareholders of the Company.
e. Notice of Distributions or Transactions. No later than 10
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business days prior to the date of any dissolution, liquidation, sale of all or
substantially all of the assets of the Company, dividend, change of control
transaction or other distribution with respect to the Common Stock of the
Company, the Company shall deliver written notice to the Optionee, notifying the
Optionee of the distribution or transaction that may affect the Common Stock
issuable upon conversion of the Shares.
f. Reservation of Rights. (i) Except as provided in this
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Section 8, the Optionee shall have no other rights by reason of (1) any
subdivision or consolidation of shares of
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stock of any class, (2) the payment of any dividend or (3) any other increase or
decrease in the number of shares of stock of any class. The grant of this Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure, to merge or consolidate or to dissolve, liquidate, sell or
transfer all or any part of its business or assets.
(ii) The Optionee shall have no rights as a stockholder with
respect to any shares issuable or transferable upon exercise hereof until the
date this option is duly exercised and Optionee becomes a stockholder of the
Company regardless of whether a stock certificate representing such shares is
issued to the Optionee. Except as otherwise expressly provided herein or by the
Board of Directors of the Company, no adjustment shall be made for cash
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
9. "Lock-Up" Agreement.
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The Optionee, if so requested by the Board of Directors of the
Company and an underwriter of Common Stock or other securities of the Company,
and provided that all officers, Investors and Directors of the Company are
similarly bound, shall not sell, grant any option or right to buy or sell, or
otherwise transfer or dispose of in any manner, whether in privately-negotiated
or open-market transactions, any Common Stock or other securities of the Company
held by him or which he has the right to acquire during a period of up to a
maximum of 180 days following the effective date of a registration statement of
the Company filed with the Securities and Exchange Commission in connection with
such offering or such shorter period as such underwriter shall have advised the
Company in writing is adequate to permit the successful and orderly distribution
of such Common Stock or other securities; provided, however, that such "lock-up"
agreement shall be in writing and in form and substance satisfactory to the
Board of Directors of the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the shares subject to the foregoing
restrictions until the end of said period. This Section 9 shall survive the
termination or exercise of this Option.
10. Notices.
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Notices or process required to be given hereunder shall be sent
by certified mail (return receipt requested) and also by first class mail and
shall be deemed given or received three (3) days after mailing thereof, to:
If to Optionee:
Wm. Xxxxxxxxxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
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with a copy by mail or fax to:
O'Melveny & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to the Company:
HOB Entertainment, Inc.
0000 Xxxxxx Xxxx., 00xx Xxxxx
Xxxxxxxxx, XX 00000
Fax No.: Attn: Xxxxxx X. Xxxxxxx
with a copy by mail or fax to:
Xxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx
000 Xxxx 0xx Xxxxxx
Xxx Xxxxxxx, XX 00000
Fax No.: 000-000-0000
11. Arbitration. ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING
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TO, OR CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH OF
THIS AGREEMENT, SHALL BE SETTLED BY ARBITRATION TO BE HELD IN LOS ANGELES
COUNTY, CALIFORNIA, IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES THEN IN
EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION AS MODIFIED HEREIN. THE PARTY OR
PARTIES SEEKING ARBITRATION SHALL COLLECTIVELY SUBMIT WITH ITS OR THEIR DEMAND
THE NAME, ADDRESS AND TELEPHONE NUMBER OF ONE ARBITRATOR. THE OPPOSING PARTY OR
PARTIES SHALL COLLECTIVELY SUBMIT WITH ITS OR THEIR RESPONSE THE NAME, ADDRESS
AND TELEPHONE NUMBER OF ONE ARBITRATOR. THE TWO SELECTED ARBITRATORS SHALL THEN
CONFER PROMPTLY WITH ONE ANOTHER IN ORDER TO NAME A THIRD DIS-INTERESTED NEUTRAL
ARBITRATOR. IF THE TWO SELECTED ARBITRATORS ARE UNABLE TO AGREE UPON THE
SELECTION OF THE THIRD NEUTRAL ARBITRATOR WITHIN THIRTY DAYS THEN THE AAA SHALL
BE AUTHORIZED TO SELECT A NEUTRAL ARBITRATOR. THE ARBITRATORS MAY GRANT
INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY. EXCEPT AS REQUIRED
BY LAW OR TO ENTER OR ENFORCE A DECISION OF THE ARBITRATORS, THE ARBITRATION
SHALL BE MAINTAINED AS STRICTLY CONFIDENTIAL BY ALL PARTIES, THE ARBITRATORS AND
THE AAA.
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DISCOVERY SHALL BE PERMITTED TO THE EXTENT PERMISSIBLE IN CIVIL ACTIONS. THE
DECISION OF THE ARBITRATORS SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE
PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE ARBITRATORS' DECISION
IN ANY COURT HAVING JURISDICTION. THE ARBITRATORS SHALL HAVE THE AUTHORITY TO
INCLUDE, AS AN ITEM OF DAMAGES, THE COSTS OF ARBITRATION, INCLUDING LEGAL FEES
AND EXPENSES, INCURRED BY THE PREVAILING PARTY. THE ARBITRATORS' AWARD SHOULD BE
RENDERED WITHIN THIRTY DAYS AFTER THE CLOSE OF HEARINGS.
12. Miscellaneous Provisions.
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a. Titles and Captions. Paragraph titles or captions contained
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herein are inserted only as a matter of convenience and for reference and in no
way define, limit, extend or describe the scope of the Agreement or the intent
of any provision.
b. Entire Agreement; Amendments. This Agreement constitutes the
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entire agreement between the parties hereto with regard to the subject matter
hereof. This Agreement may not be amended except by a written instrument signed
by both parties hereto.
c. Choice of Law. This Agreement shall be governed, construed,
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interpreted, and enforced in accordance with the substantive law of the State of
Delaware applied to agreements entered into and performed entirely within such
State.
d. Interpretation and Modification of Agreement. Optionee
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acknowledges receipt of a copy of the Plan, the terms of which are incorporated
herein by reference. In the event of any conflict between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall prevail and be
controlling, except to the extent, and with respect to matters, that the Plan
allows for modifications, in which event this Agreement shall govern. Subject
to the foregoing, this Agreement represents the entire agreement of the parties
with respect to the option evidenced hereby and supersedes all prior written or
oral understandings or agreements with respect thereto. All determinations
under and interpretations of the Plan and this Agreement shall be vested in the
Board of Directors of the Company or committee thereof selected to administer
the Plan (in either case, the "Committee"), whose decisions shall be final,
conclusive and binding on all persons. The Committee shall have the authority
to correct any defect or supply any omission or reconcile any inconsistency in
this Agreement provided that such action does not adversely affect the rights
granted to Optionee hereunder. The Committee shall also have the power (subject
to such consultation as deemed advisable with the Company's principal accounting
officer regarding accounting and tax consequences) to modify or amend this
Agreement, or waive any condition or restriction herein (including, without
limitation, restrictions on periods of exercisability), if such modification,
amendment or waiver would increase Optionee's benefits under this Agreement and
is consistent with the Plan.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Optionee has
personally executed this Agreement.
HOB ENTERTAINMENT, INC.
/s/ Wm. Xxxxxxxxxxx Xxxxx
-------------------------- By: /s/ Xxxxxxx X. Trojan
WM. XXXXXXXXXXX XXXXX ---------------------------
Name: Xxxxxxx X. Trojan
Title: President and
Chief Executive Officer
Optionee's Address:
0000 Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
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EXHIBIT A
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[Date of Exercise]
HOB Entertainment Inc.
0000 Xxxxxx Xxxx.
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
Re: Stock Option
Dear Sir/Madame:
I am the holder of a stock option granted to me by HOB Entertainment,
Inc. (the "Company"), pursuant to a Stock Option Agreement dated as of January
31, 2000, to purchase 2,675,000 shares of Common Stock of the Company
("Shares"). I hereby exercise such option with respect to ___________ Shares,
the total purchase price for which is $__________, and [I enclose a certified,
bank cashier's or other acceptable check payable to the order of the Company in
the amount of $_______, representing the total purchase price for the Shares]
The certificate or certificates representing the Shares should be registered in
my name and should be forwarded to me at ________________________________.
Please acknowledge receipt of the exercise of my stock option on the
attached copy of this letter.
Very truly yours,
Wm. Xxxxxxxxxxx Xxxxx
RECEIPT ACKNOWLEDGED:
HOB ENTERTAINMENT, INC.
By:
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Name:
Title:
