EXHIBIT 4.10
THQ INC. AMENDED AND RESTATED NONEXECUTIVE EMPLOYEE
STOCK OPTION PLAN
FORM OF NONEXECUTIVE EMPLOYEE STOCK OPTION AGREEMENT
THQ Inc., a Delaware corporation (the "Company"), hereby grants
to ___________________________ (the "Optionee") as of * (the "Option Date"),
pursuant to the provisions of the THQ Inc. Amended and Restated Nonexecutive
Employee Stock Option Plan (the "Plan"), a nonqualified option to purchase from
the Company (the "Option") * shares of its Common Stock, $.01 par value
("Stock"), at the price of * (the "Exercise Price") per share upon and subject
to the terms and conditions set forth below. Capitalized terms not defined
herein shall have the meanings specified in the Plan.
(* As set forth in the Notice of Grant of Stock Options attached to this
Nonexecutive Employee Stock Option Agreement as Exhibit A ("your Notice").)
1. Option Subject to Acceptance of Agreement. The Option shall not be
exercisable unless and until the Optionee shall accept this Agreement by
executing it in the space provided below and returning such original
execution copy to the Company.
2. Time and Manner of Exercise of Option.
A. Maximum Term of Option. In no event may the Option be exercised,
in whole or in part, later than 5 years after the Option Date
(the "Expiration Date").
B. Exercise of Option.
1. Subject to the limitations set forth below, the Option
shall be exercisable by the Optionee at the times and in
the amounts set forth in your Notice.
2. If the Optionee's employment terminates for any reason
other than Cause, Disability or death, the Option may
thereafter be exercised, only to the extent it is
exercisable at the time of such termination, by the
Optionee until and including the earlier to occur of (i)
the date which is 90 days after the effective date of
the Optionee's termination of employment and (ii) the
Expiration Date.
3. If the Optionee's employment with the Company terminates
by reason of Disability or death, the Option may
thereafter be exercised, only to the extent it is
exercisable at the time of such termination, by the
Optionee or the Optionee's Legal Representative (as
defined in Section 4.2(c) below) until and including the
earlier to occur of (i) the date which is one year after
the effective date of the Optionee's termination of
employment and (ii) the Expiration Date.
4. If the Optionee's employment with the Company is
terminated by the Company for Cause, the Option shall
terminate automatically on the effective date of the
Optionee's termination of employment.
5. If the Optionee dies during the period set forth in
Section 2.2(b) following termination of employment for a
reason other than Cause, or during the period set forth
in Section 2.2(c) following termination of employment by
reason of Disability, the Option may thereafter be
exercised by the Optionee's Legal Representative, to the
extent it is exercisable at the time of death, until and
including the earlier to occur of (i) the date which is
one year after the date of death and (ii) the Expiration
Date.
6. If the Optionee breaches a covenant set forth in any
employment, noncompetition, nonsolicitation,
confidentiality, inventions or similar agreement between
the Optionee and the Company (an "Employment Agreement")
at any time, the Option shall terminate automatically
upon such breach.
3. Method of Exercise. Subject to the limitations set forth in this
Agreement, the Option may be exercised by the Optionee (i) by giving
written notice to the Company specifying the number of whole shares of
Stock to be purchased and accompanied by payment therefor in full (or
arrangement made for such payment to the Company's satisfaction) either
(A) in cash, (B) by delivery (either actual delivery or by attestation
procedures established by the Company) of Mature Shares having an
aggregate Fair Market Value, determined as of the date of exercise,
equal to the aggregate purchase price payable by reason of such
exercise, (C) in cash by a broker-dealer acceptable to the Company to
whom the optionee has submitted an irrevocable notice of exercise (if
the Common Stock has been registered under the Exchange Act and is
publicly traded) or (D) a combination of (A), (B) and (C), and (ii) by
executing such documents as the Company may reasonably request. The
Company shall have sole discretion to disapprove of an election pursuant
to any of clauses (B) - (D). Any fraction of a share of Stock, which
would be required to pay such purchase price, shall be disregarded and
the remaining amount due shall be paid in cash by the Optionee. No
certificate representing Stock shall be delivered until the full
purchase price therefor has been paid (or arrangement made for such
payment to the Company's satisfaction).
4. Termination of Option. In no event may the Option be exercised after it
terminates as set forth in this Section 2.4. The Option shall terminate,
to the extent not exercised pursuant to Section 2.3 or earlier
terminated pursuant to Section 2.2, on the Expiration Date.
5. Additional Terms and Conditions of the Option.
A. Nontransferability of Option. The Option may not be transferred
by the Optionee other than by will or the laws of descent and
distribution or pursuant to beneficiary designation procedures
approved by the Company. Except to the extent permitted by the
foregoing sentence, during the Optionee's lifetime the Option is
exercisable only by the Optionee or the Optionee's Legal
Representative. Except to the extent permitted by the foregoing,
the Option may not be sold, transferred, assigned, pledged,
hypothecated, encumbered or otherwise disposed of (whether by
operation of law or otherwise) or be subject to execution,
attachment or similar process. Any attempt to so sell, transfer,
assign, pledge, hypothecate, encumber or otherwise dispose of
the Option shall be null and void.
B. Investment Representation. The Optionee hereby represents and
covenants that (a) any share of Stock purchased upon exercise of
the Option will be purchased for investment and not with a view
to the distribution thereof within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), unless such
purchase has been registered under the Securities Act and any
applicable state securities laws; (b) any subsequent sale of any
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such shares shall be made either pursuant to an effective
registration statement under the Securities Act and any
applicable state securities laws, or pursuant to an exemption
from registration under the Securities Act and such state
securities laws; and (c) if requested by the Company, the
Optionee shall submit a written statement, in form satisfactory
to the Company, to the effect that such representation (x) is
true and correct as of the date of purchase of any shares
hereunder or (y) is true and correct as of the date of any sale
of any such shares, as applicable. As a further condition
precedent to any exercise of the Option, the Optionee shall
comply with all regulations and requirements of any regulatory
authority having control of or supervision over the issuance or
delivery of the shares and, in connection therewith, shall
execute any documents which the Administrator shall in its sole
discretion deem necessary or advisable.
C. Withholding Taxes.
1. As a condition precedent to the delivery of Stock upon
exercise of the Option, the Optionee shall, upon request
by the Company, pay to the Company in addition to the
purchase price of the shares, such amount of cash as the
Company may be required, under all applicable federal,
state, local or other laws or regulations, to withhold
and pay over as income or other withholding taxes (the
"Required Tax Payments") with respect to such exercise
of the Option. If the Optionee shall fail to advance the
Required Tax Payments after request by the Company, the
Company may, in its discretion, deduct any Required Tax
Payments from any amount then or thereafter payable by
the Company to the Optionee.
2. The Optionee may elect to satisfy his or her obligation
to advance the Required Tax Payments by any of the
following means: (1) a cash payment to the Company
pursuant to Section 3.3(a), (2) delivery (either actual
delivery or by attestation procedures established by the
Company) to the Company of Mature Shares (held at least
six months by Optionee) having an aggregate Fair Market
Value, determined as of the date the obligation to
withhold or pay taxes first arises in connection with
the Option (the "Tax Date"), equal to the Required Tax
Payments, (3) authorizing the Company to withhold whole
shares of Stock which would otherwise be delivered to
the Optionee upon exercise of the Option having an
aggregate Fair Market Value, determined as of the Tax
Date, equal to the Required Tax Payments, (4) a cash
payment by a broker-dealer acceptable to the Company to
whom the Optionee has submitted an irrevocable notice of
exercise (if the Stock has been registered under the
Exchange Act and is publicly traded) or (5) any
combination of (1), (2), (3) and (4). The Company shall
have sole discretion to disapprove of an election
pursuant to any of clauses (2)-(5). Shares of Stock to
be delivered or withheld may not have a Fair Market
Value in excess of the minimum amount of the Required
Tax Payments. Any fraction of a share of Stock, which
would be required to satisfy any such obligation, shall
be disregarded and the remaining amount due shall be
paid in cash by the Optionee. No certificate
representing a share of Stock shall be delivered until
the Required Tax Payments have been satisfied in full.
D. Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off or other
similar change in capitalization or event, or any distribution
to holders of Stock other than a regular cash dividend, the
number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by
the
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Administrator without an increase in the aggregate purchase
price. If any adjustment would result in a fractional security
being subject to the Option, the Company shall pay the Optionee,
in connection with the first exercise of the Option occurring
after such adjustment, an amount in cash determined by
multiplying (i) the fraction of such security (rounded to the
nearest hundredth) by (ii) the excess, if any, of (A) the Fair
Market Value on the exercise date over (B) the exercise price of
the Option. The decision of the Administrator regarding any such
adjustment shall be final, binding and conclusive.
E. Corporate Transaction. In the event of a Corporate Transaction,
the Board (as constituted immediately prior to such Corporate
Transaction) may, in its discretion:
1. require the substitution for each share of Stock subject
to the Option the number and class of shares, if any,
into which each outstanding share of Common Stock shall
be converted pursuant to such Corporate Transaction. In
the event of any such substitution, the Exercise Price
shall be appropriately adjusted by the Administrator,
such adjustment to be made without an increase in the
aggregate purchase price; or
2. require the Option to be surrendered to the Company by
the Optionee, and to be immediately cancelled by the
Company, and to provide for the Optionee to receive
either (i) a cash payment in an amount not less than the
number of shares of Stock then subject to the Option,
whether or not the Option is then exercisable with
respect to such shares, multiplied by the excess, if
any, of the greater of (A) the highest per share price
offered to holders of Common Stock in any transaction
whereby the Corporate Transaction takes place or (B) the
Fair Market Value of a share of Common Stock on the date
of occurrence of the Corporate Transaction, over the
Exercise Price or (ii) shares of stock into which each
outstanding share of Common Stock shall be converted
pursuant to such Corporate Transaction having a Fair
Market Value not less than the amount determined under
clause (i) above.
F. Compliance with Applicable Law. The Option is subject to the
condition that if the listing, registration or qualification of
the shares subject to the Option upon any securities exchange or
under any law, or the consent or approval of any governmental
body, or the taking of any other action is necessary or
desirable as a condition of, or in connection with, the purchase
or delivery of shares hereunder, the Option may not be
exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained, free of any conditions not acceptable to
the Company.
G. Delivery of Certificates. Upon the exercise of the Option, in
whole or in part, the Company shall deliver or cause to be
delivered one or more certificates representing the number of
shares purchased against full payment therefor. The Company
shall pay all original issue or transfer taxes and all fees and
expenses incident to such delivery, except as otherwise provided
in Section 3.3.
H. Option Confers No Rights as Stockholder. The Optionee shall not
be entitled to any privileges of ownership with respect to
shares of Stock subject to the Option unless and until purchased
and delivered upon the exercise of the Option, in whole or in
part, and the Optionee becomes a stockholder of record with
respect to delivered shares; and the Optionee shall not be
considered a stockholder of the Company with respect to any such
shares not so purchased and delivered. Notwithstanding any
provision of the Plan or this
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Agreement, the Optionee shall be subject to and bound by all
provisions of each other agreement between the Company and the
Optionee.
I. Option Confers No Rights to Continued Employment. In no event
shall the granting of the Option or its acceptance by the
Optionee give or be deemed to give the Optionee any right to
continued employment by the Company or any affiliate of the
Company.
J. Designation as Nonqualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option"
within the meaning of section 422 of the Code. This Agreement
shall be interpreted and treated consistently with such
designation.
K. Company to Reserve Shares. The Company shall at all times prior
to the expiration or termination of the Option reserve and keep
available, either in its treasury or out of its authorized but
unissued shares of Stock, the full number of shares subject to
the Option from time to time.
L. Miscellaneous Provisions.
1. Decisions of Administrator. The Administrator shall have
the right to resolve all questions, which may arise in
connection with the Option or its exercise. Any
interpretation, determination or other action made or
taken by the Administrator regarding the Plan or this
Agreement shall be final, binding and conclusive.
2. Meaning of Certain Terms.
As used herein, references to employment shall mean an
agency or independent contractor relationship and
references to employment by the Company shall also mean
employment by a Subsidiary.
References in this Agreement to sections of the Code
shall be deemed to refer to any successor section of the
Code or any successor internal revenue law.
As used herein, the term "Legal Representative" shall
include an executor, administrator, legal
representative, guardian or similar person.
3. Successors. This Agreement shall be binding upon and
inure to the benefit of any successor or successors for
the Company and any person or persons who shall, upon
the death of the Optionee, acquire any rights hereunder
in accordance with this Agreement or the Plan.
4. Notices. All notices, requests or other communication
provided for in this Agreement shall be made, if to the
Company, to THQ Inc., 00000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000, and if to the
Optionee, to the last known mailing address of the
Optionee contained in the records of the Company. All
notices, requests or other communications provided for
in this Agreement shall be made in writing either (a) by
personal delivery to the party entitled thereto, (b) by
mailing in the United States mail, return receipt
requested, to the last known address of the party
entitled thereto or (c) by express courier service, with
a signature of the recipient required. The notice,
request or other communication shall be deemed to be
received upon personal delivery, or upon receipt by the
party entitled thereto if by United States mail or
express courier
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service; provided, however, that if a notice, request or
other communication sent to the Company is not received
during regular business hours, it shall be deemed to be
received on the next succeeding business day of the
Company.
5. Partial Invalidity. The invalidity or unenforceability
of any particular provision of this Agreement shall not
affect the other provisions hereof and this Agreement
shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
6. Governing Law. This Agreement, the Option and all
determinations made and actions taken pursuant hereto
and thereto, to the extent not governed by the laws of
the United States, shall be governed by the laws of the
State of Delaware and construed in accordance therewith
without giving effect to principles of conflicts of
laws.
7. Agreement Subject to the Plan. This Agreement is subject
to the provisions of the Plan, and shall be interpreted
in accordance therewith. The Optionee hereby
acknowledges receipt of a copy of the Plan.
8. Counterparts. This Agreement may be executed in two
counterparts each of which shall be deemed an original
and both of which together shall constitute one and the
same instrument.
THQ INC.
By:
--------------------------------
Name:
Title:
Accepted this _______ day of
___________________, 200_
--------------------------------
Optionee
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