XXXXXXXX.XXX, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
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THIS AGREEMENT, made as of the 14th day of July, 2000 (the "Grant
Date"), by and between xxxxxxxx.xxx, inc. (the "Company"), and Xxxxxxx Xxxx
(the "Optionee").
WHEREAS, the Options (as defined below) are being granted
pursuant to the Employment Agreement, dated July 14, 2000, between the
Company and the Optionee (the "Employment Agreement");
WHEREAS, the grant of the Options is an essential inducement to
Optionee's entering into the Employment Agreement and the Optionee would
not have entered into the Employment Agreement but for the grant of the
Options; and
WHEREAS the Options are not being granted pursuant to any of the
Company's Stock Option Plans (the "Plans").
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Options.
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1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate of
250,000 whole Shares subject to, and in accordance with, the terms and
conditions set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code.
1.3 This Agreement is subject to the Employment Agreement (the
provisions of which are incorporated herein by reference) and, except as
otherwise expressly set forth herein, the capitalized terms used in this
Agreement shall have the same definitions as set forth in the Employment
Agreement.
2. Purchase Price.
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The per share price at which the Optionee shall be entitled to
purchase the Shares covered by the Option upon exercise shall be the
closing price of a Share on the date hereof.
3. Duration of Option.
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The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten (10) years from the Grant Date (the
"Exercise Term"); provided, however, that the Option may be earlier
terminated as provided in Section 6 hereof; provided, further, that the
Option may, upon the death of the Optionee, be later exercised for up to
one (1) year following the date of the Optionee's death if such death
occurs prior to the tenth anniversary of the Grant Date.
4. Exercisability of Option.
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Unless otherwise provided in this Agreement and subject to the
Optionee's continued employment with the Company on such dates, the Option
shall vest and become exercisable within respect to 100% of the Shares
covered thereby on the earlier to occur of (i) the ten (10) year
anniversary of the Grant Date, (ii) the date upon which the Fair Market
Value of a Share is $20 or higher for a continuous 30-day period and (iii)
the occurrence of a Change in Control under section (1) of the definition
of Change in Control in the Employment Agreement but only if the per Share
acquisition price of voting securities of the Company is equal to or
greater than $ 10.
5. Manner of Exercise and Payment.
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5.1 Subject to the terms and conditions of this Agreement, the
Option may be exercised by written notice delivered in person or by mail to
the Controller of the Company, at its principal executive offices, 000
Xxxxxxxx, Xxx Xxxx, XX 00000. Such notice shall be substantially in the
form attached hereto as Exhibit A, shall state that the Optionee is
electing to exercise the Option and the number of Shares in respect of
which the Option is being exercised and shall be signed by the person or
persons exercising the Option. If requested by the Committee, such person
or persons shall (i) deliver this Agreement to the Secretary of the Company
who shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to exercise
the Option.
5.2 The notice of exercise described in Section 5.1 hereof shall
be accompanied by the full purchase price for the Shares in respect of
which the Option is being exercised, in cash, or, if permitted by the
Committee, by transferring Shares, either actually or by attestation, to
the Company having a Fair Market Value on the day preceding the date of
exercise equal to the cash amount for which such Shares are substituted. In
addition, Options may be exercised through a registered broker-dealer
pursuant to such cashless exercise procedures which, from time to time, are
deemed acceptable by the Committee.
5.3 Upon receipt of notice of exercise and full payment for the
Shares in respect of which the Option is being exercised, the Company
shall, subject to Section 16 hereof, take such action as may be necessary
to effect the transfer to the Optionee of the number of Shares as to which
such exercise was effective. No fractional Shares (or cash in lieu thereof)
shall be issued upon exercise of an Option and the number of Shares that
may be purchased upon exercise shall be rounded to the nearest number of
whole Shares.
5.4 The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Optionee shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company, whereupon the Optionee
shall have full voting and other ownership rights with respect to such
Shares, subject to the terms of this Agreement.
6. Termination of Option. Subject to Section 7 hereof, the Option
shall terminate on the date which is the tenth anniversary of the Grant
Date (or if later, the first anniversary of the date of the Optionee's
death if such death occurs prior to such tenth anniversary), unless
terminated earlier as follows:
6.1 If the employment of the Optionee by the Company is
terminated upon expiration of the "Employment Term" (as defined in the
Employment Agreement) after four (4) years, by the Optionee for any reason
or by the Company for any reason other than death or Disability, the
Optionee may for a period of three (3) months after such termination
exercise his Option to the extent, and only to the extent, that such Option
or portion thereof was exercisable as of the date of such termination or
cessation, after which time the Option shall automatically terminate in
full.
6.2 If the employment of the Optionee by the Company is
terminated by reason of Disability, the Optionee may, for a period of
twelve (12) months after such termination, exercise the Option to the
extent, and only to the extent, that such Option or portion thereof was
exercisable, as of the date of such termination, after which time the
Option shall automatically terminate in full.
6.3 If the employment of the Optionee by the Company is
terminated by reason of his death, the Option may be exercised at any time
within twelve (12) months after the Optionee's death by the person or
persons to whom such rights under the Option shall pass by will, or by the
laws of descent or distribution, after which time the Option shall
terminate in full; provided, however, that an Option may be exercised to
the extent, and only to the extent, that the OPTION OR PORTION THEREOF WAS
EXERCISABLE ON THE DATE of death. If the Optionee dies within three (3)
months after termination as described in Section 6. 1 hereof or within
twelve (12) months after termination as described in Section 6.2 hereof,
the Option granted to the Optionee may be exercised at any time within
twelve (12) months after the Optionee's death by the person or persons to
whom such rights under the Option shall pass by will, or by the laws of
descent or distribution, after which time the Option shall terminate in
full; provided, however, that an Option may be exercised to the extent, and
only to the extent, that the Option or portion thereof was exercisable on
the date of termination.
6.4 The Option, to the extent not exercisable, shall terminate
immediately upon the Optionee's termination of employment with the Company
or a Subsidiary for any reason.
6.5 For purposes of this Section 6, the Optionee shall not be
treated as terminated for so long as he is an employee of the Company or a
Subsidiary.
7. Effect of Certain Transactions.
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(a) In the event of a merger or consolidation of the Company with
or into another corporation, or the sale of substantially all of the assets
of the (a "Transaction"), the Option shall be assumed, or an equivalent
option shall be substituted, by the Successor Corporation; provided,
however, that, unless otherwise determined by the Committee, the Option
shall remain subject to all of the conditions and restrictions which were
applicable to the Option prior to such assumption or substitution. In the
event that the Successor Corporation refuses to or does not assume the
Option or substitute an equivalent option therefor, the Optionee shall have
the right to exercise the Option as to all of the Shares subject to the
Option as described below, including Shares as to which it would not
otherwise be exercisable (a "Transaction Acceleration").
(b) In the event of a Transaction Acceleration, the Secretary of
the Company shall notify the Optionee that the Option shall be fully
exercisable for a period of fifteen (15) days (or such other period as
shall be determined by the Board) from the date of such notice, and the
Option shall terminate upon the expiration of such period. For the purposes
of this paragraph, the Option shall be considered assumed if, following the
merger or sale of assets, the option confers the right to purchase or
receive upon exercise, for each Share subject to the Option immediately
prior to the Transaction, the consideration (whether stock, cash, or other
securities or property) received in the Transaction for each Share held on
the effective date of the Transaction (and if holders were offered a choice
of consideration, the type of such consideration as determined by the
Board).
(c) Notwithstanding anything to the contrary contained in Section
7, in the event of a Transaction Acceleration, or in the event the
exercisability of any Options is accelerated in connection with any
transaction involving the Company or its capital stock pursuant to Section
4 hereof, the Committee may, in its sole discretion, authorize the
redemption of the unexercised portion of the Option for a consideration per
Share equal to the excess of (i) the consideration payable per Share in
connection with such transaction, over (ii) the purchase price per Share
subject to the Option.
8. Non-Transferability.
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The Option shall not be transferable other than by will or by the
laws of descent and distribution or pursuant to a domestic relations order
(within the meaning of Rule 16a- 12 promulgated under the Exchange Act),
and the Option shall be exercisable during the lifetime of the Optionee
only by the Optionee or his guardian or legal representative.
9. Limitation on Rights.
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Nothing in this Agreement shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of
employment by the Company or any of its affiliates, nor shall this
Agreement interfere in any way with the right of the Company or any of its
affiliates to terminate the Optionee's employment at any time.
10. Adjustments.
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10.1 In the event of a Change in Capitalization, the Committee
shall make appropriate adjustments, if any, to the number and class of
Shares or other stock or securities subject to the Option and the purchase
price for such Shares or other stock or securities. The Committee's
adjustment shall be effective and final, binding and conclusive for all
purposes of this Agreement.
10.2 If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise the Option with respect to new, additional or
different shares of stock or securities, such new, additional or different
shares shall thereupon be subject to all of the conditions and restrictions
which were applicable to the Shares subject to the Option prior to such
Change in Capitalization.
11. Effect of a Merger, Consolidation or Liguidation.
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Subject to Section 7 hereof, upon the occurrence of a
Transaction, the Option shall continue in effect in accordance with its
terms and the Optionee shall be entitled to receive in respect of all
Shares subject to the Option, upon exercise of the Option, the same number
and kind of stock, securities, cash, property or other consideration that
each holder of Shares was entitled to receive in the Transaction in respect
of a Share; provided, however, that such stock, securities, cash, property,
or other consideration shall remain subject to all of the conditions and
restrictions which were applicable to the Option prior to such Transaction.
12. Withholding of Taxes.
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At such times as the Optionee recognizes taxable income in
connection with the receipt of Shares hereunder (a "Taxable Event"), the
Optionee shall pay to the Company an amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be
withheld by the Company in connection with the Taxable Event (the
"Withholding Taxes") prior to the issuance of such Shares. The Company
shall have the right to deduct from any payment or distribution of cash to
the Optionee an amount equal to the Withholding Taxes with respect to the
Option.
13. Pooling Transactions.
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Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Transaction which is also intended to
constitute a Pooling Transaction, the Committee shall take such actions, if
any, as are specifically recommended by an independent accounting firm
retained by the Company to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including but not
limited to (a) deferring the vesting, exercise, payment, settlement or
lapsing of restrictions with respect to the Option, (b) providing that the
payment or settlement in respect of the Option be made in the form of cash,
Shares or securities of a successor or acquirer of the Company, or a
combination of the foregoing, and (c) providing for the extension of the
term of any Option to the extent necessary to accommodate the foregoing,
but not beyond the maximum term permitted for any Option.
14. Modification of Agreement.
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This Agreement may be modified, amended, suspended or terminated,
and any terms or conditions may be waived, but only by a written instrument
executed by the parties hereto.
15. Severability.
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Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such
holding and shall continue in full force in accordance with their terms.
16. Registration of Shares.
----------------------
16.1 The Company shall, as soon as practicable after the date
hereof, cause the Shares underlying the Option to be registered with the
Securities and Exchange Cornmission. The Option is subject to the
requirement that, if at any time the Cornmittee determines, in its
discretion, that the listing, registration or qualification of Shares
issuable pursuant to this Agreement is required by any securities exchange
or under any state or federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of,
or in connection with, the issuance of Shares, no payment shall be made or
Shares issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of
any conditions as acceptable to the Committee. The Board may make such
changes to the Option as may be necessary or appropriate to comply with the
rules and regulations of any governmental authority.
16.2 Notwithstanding anything contained in this Agreement to the
contrary, in the event that the disposition of Shares acquired pursuant to
this Agreement is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is
not otherwise exempt from such registration, such Shares shall be
restricted against transfer to the extent required by the Securities Act
and Rule 144 or other regulations thereunder. The Committee may require the
Optionee, as a condition precedent to receipt of Shares hereunder, to
represent and warrant to the Company in writing that the Shares acquired by
him are acquired without a view to any distribution thereof and will not be
sold or transferred other than pursuant to an effective registration
thereof under said Act or pursuant to an exemption applicable under the
Securities Act or the rules and regulations promulgated thereunder. The
certificates evidencing any of such Shares shall be appropriately amended
to reflect their status as restricted securities as aforesaid.
17. Governing Law.
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17.1 The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Delaware
without giving effect to the conflicts of laws principles thereof.
17.2 The obligation of the Company to sell or deliver Shares
covered by the Option shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws,
and the obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Committee.
18. Successors in Interest.
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This Agreement shall inure to the benefit of and be binding upon
any successor to the Company. This Agreement shall inure to the benefit of
the Optionee's legal representatives. All obligations imposed upon the
Optionee and all rights granted to the Company under this Agreement shall
be final, binding and conclusive upon the Optionee's heirs, executors,
administrators and successors.
19. Resolution of Disputes.
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Any dispute or disagreement which may arise under, or as a result
of, or in any way relate to, the interpretation, construction or
application of this Agreement shall be determined by the Committee. Any
determination made hereunder shall be final, binding and conclusive on the
Optionee and the Company for all purposes.
20. Interpretation.
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The grant of the Option pursuant hereto is intended to comply
with Rule l6b-3 promulgated under the Exchange Act and the Committee shall
interpret and administer the provisions of this Agreement in a manner
consistent therewith. Any provisions inconsistent with such rule shall be
inoperative and shall not affect the validity of this Agreement.
21. Administration.
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21.1 This Agreement shall be administered by the Committee. The
Committee shall consist of at least two (2) Directors and may consist of
the entire Board; provided, however, that if the Committee consists of less
than the entire Board, each member shall be a Nonemployee Director. For
purposes of the preceding sentence, if one or more members of the Committee
is not a Nonemployee Director but recuses himself or herself or abstains
from voting with respect to a particular action taken by the Committee,
then the Committee, with respect to that action, shall be deemed to consist
only of the members of the Committee who have not recused themselves or
abstained from voting.
21.2 No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with
respect to this Agreement. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the extent
permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiating for the settlement of or
otherwise dealing with any claim, cause of action or dispute of any kind
arising in connection with any actions in administering this Agreement or
in authorizing or denying authorization to any transaction hereunder.
21.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
(a) to construe and interpret this Agreement and to
establish, amend and revoke rules and regulations for the administration of
this Agreement, including, but not limited to, correcting any defect or
supplying any omission, or reconciling any inconsistency in this Agreement,
in the manner and to the extent it shall deem necessary or advisable,
including so that this Agreement complies with Rule 16b-3 under the
Exchange Act, the Code to the extent applicable and other applicable law,
and otherwise to make this Agreement fully effective. All decisions and
determinations by the Committee in the exercise of this power shall be
final, binding and conclusive upon the Company, its Subsidiaries, the
Optionee, and all other persons having any interest herein;
(b) to determine the duration and purposes for leaves of
absence which may be granted to the Optionee on an individual basis without
constituting a termination of employment or service for purposes of this
Agreement;
(c) to exercise its discretion with respect to the powers
and rights granted to it as set forth in this Agreement; and
(d) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to this Agreement.
22. Board Approval.
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The effectiveness of this Agreement and of the grant of the
Option pursuant hereto is subject to the approval of the Board.
23. Definitions.
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For purposes of this Agreement:
23.1 "Board" means the Board of Directors of the Company.
23.2 "Cause" shall have the meaning ascribed to it in the
Employment Agreement.
23.3 "Change in Capitalization" means any increase or reduction
in the number of Shares, or any change (including, but not limited to, in
the case of a spin-off, dividend or other distribution in respect of
Shares, a change in value) in the Shares or exchange of Shares for a
different number or kind of shares or other securities of the Company or
another corporation, by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, spin-off, split-up, issuance of
warrants or rights or debentures, stock dividend, stock split or reverse
stock split, cash dividend, property dividend, combination or exchange of
shares, repurchase of shares, change in corporate structure or otherwise.
23.4 "Code" means the Internal Revenue Code of 1986, as amended.
23.5 "Committee" means the committee, appointed by the Board from
time to time, to administer the Plans and to perform the functions set
forth therein.
23.6 "Director" means a director of the Company.
23.7 "Disability" shall have the meaning ascribed to it in the
Employment Agreement.
23.8 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
23.9 "Fair Market Value" on any date means the closing sales
price of the Shares on such date on the principal national securities
exchange on which such Shares are listed or admitted to trading, or, if
such Shares are not so listed or admitted to trading, the average of the
per Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated
Quotation System or such other market in which such prices are regularly
quoted, or, if there have been no published bid or asked quotations with
respect to Shares on such date, the value established by the Committee in
good faith.
23. 10 "Nonemployee Director" means a director of the Company who
is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
23.11 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of
interests" under generally accepted accounting principles.
23.12 "Shares" means the common stock, par value $0.001 per
share, of the Company.
23.13 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect
to the Company.
23.14 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a Transaction.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
xxxxxxxx.xxx, inc.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Pres., COO
Optionee
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Address:
Exhibit A
NOTICE OF EXERCISE
xxxxxxxx.xxx, inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000 Date of Exercise:
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Ladies and Gentlemen:
This constitutes notice under my Nonqualified Stock Option Agreement
(the "Option Agreement") that I elect to purchase the number of shares for
the price set forth below.
Stock option dated: ________________
Number of shares as to
which option is exercised: ________________
Certificates to be issued
in name of: ________________
Total exercise price: $________________
Cash payment delivered
herewith: $________________
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms the Option Agreement, and (ii) to
provide for the payment by me to you (in the manner designated by you) of
your withholding obligation, if any, relating to the exercise of this
option.
Very truly yours,
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Address:
