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EXHIBIT 10.37
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") dated as of April 17, 1997
entered into between THE XXXXXX ENTERTAINMENT COMPANY, a California corporation
(the "Company"), and XXXXXXX X. XXXXXXXXXX ("Optionee"). This Option is granted
under, and is governed by, the Company's Proposed 1997 Stock Option Plan (the
"Plan").
1. GRANT OF OPTION. The Company hereby grants to Optionee the option
("Option") to purchase upon, and subject to, the terms and conditions set forth
herein, all or any part of fifty thousand (50,000) shares of Company's common
stock ("Common Stock") at the closing price per share of the Company's Common
Stock on the date hereof. The Option granted hereunder is not intended to
qualify as an "Incentive Stock Option" within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended. The grant of this Option is subject
to confirmation by the Company's Stock Option Committee.
2. TERM AND EXERCISABILITY.
(a) The term of the Option granted hereunder shall commence as of
the date hereof and shall terminate on the tenth anniversary hereof, unless
sooner terminated in accordance with the provisions set forth herein or in the
Plan;
(b) The Option is exercisable immediately.
(c) If Optionee ceases to be employed by the Company or a
Subsidiary for any reason other than the Optionee's death or permanent
disability (within the meaning of Section 105(d)(4) of the Code), the Option may
be exercised for three months after the date the Optionee ceases to be an
employee of the Company or such Subsidiary and not thereafter. A leave of
absence approved in writing the Board of Directors or the Committee shall not be
deemed a termination of employment for the purposes of this Section 2, but no
Option may be exercised during any such leave of absence, except during the
first three months thereof;
(d) If Optionee dies or becomes permanently disabled while
employed by the Company or a Subsidiary, Optionee's Option shall expire one year
after the date of such death or permanent disability. During such period after
death, such Option may be exercised by the person or persons to whom the
Optionee's rights under the Option shall pass by the Optionee's will or by the
laws of descent and distribution.
3. EXERCISE OF OPTION.
3.1 NOTICE. The Option shall be exercised by written notice
delivered to the Company stating the number of shares with respect to which the
Option is being exercised, together with the form of payment allowed in the
Plan. If the Option is being exercised by any person(s) other than Optionee,
notice shall be accompanied by proof, satisfactory to counsel for the Company,
of the right of the applicable person(s) to exercise the Option. Not less than
one hundred (100) shares may be purchased at any one time unless the number
purchased is the total number which may be purchased under the Option and in no
event may the Option be exercised with respect to fractional shares.
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3.2 WITHHOLDING TAX. Optionee may not exercise all or any portion
of the Option granted hereunder unless and until Optionee shall have made all
arrangements which the Company and its counsel shall deem necessary to satisfy
the Company's federal and state income tax withholding obligations, including
paying to the Company the amount of any taxes which the Company may be required
to withhold with respect thereto, as provided in the Plan.
4. NONTRANSFERABILITY; DISABILITY OR DEATH OF OPTIONEE. The Option shall
not be transferable except by will or by the laws of descent and distribution
and shall be exercisable only by Optionee or the Optionee's guardian or legal
representative during his lifetime. After death, the persons to whom Optionee's
rights under the Option shall have passed by order of a court of competent
jurisdiction, by will or by the applicable laws of descent and distribution or
the executor or administrator of Optionee's estate, shall have the right to
exercise the Option, pursuant to the terms of this Agreement and the Plan.
Except as permitted by the preceding sentence, no option granted hereunder may
be transferred. assigned, pledged, hypothecated or otherwise disposed of
(whether by operation of law or otherwise) or be subject to execution,
attachment or similar process. Upon any attempt to so transfer, assign, pledge,
hypothecate or otherwise dispose of any option granted hereunder. such option
and all rights thereunder shall immediately become null and void.
5. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall have no rights as a
stockholder with respect to the Common Stock until the date of issuance of stock
certificates to Optionee. No adjustment will be made for dividends or other
rights for which the record date is prior to the date the stock certificates are
issued.
6. NOTIFICATION OF SALE. Subject to Section 7 hereof, Optionee agrees
that Optionee, or any person acquiring shares upon exercise of the Option, will
notify the Company not more than five (5) days after any sale or other
disposition of such shares.
7. HOLDING OF STOCK AFTER EXERCISE OF OPTION. 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 or
applicable state securities law; (b) any subsequent sale of any 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, Optionee shall submit a written
statement, in form satisfactory to counsel for 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. A legend to the foregoing effect shall be placed
upon any shares received upon exercise of this Option. As a further condition
precedent to any exercise of the Option, Optionee shall comply with all
regulations and requirements of any regulatory authority having control of or
supervision over the issuance of the shares and, in connection therewith, shall
execute any documents which the Board or any committee authorized by the Board
shall in its sole discretion deem necessary or advisable.
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8. DELIVERY OF CERTIFICATES.
Upon the exercise of the Option in whole or in part, the Company
shall deliver 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 3.2.
9. ADJUSTMENTS.
In the event of any change in the outstanding Common Stock by
reason of any stock split, stock dividend, recapitalization, reorganization,
merger, consolidation, combination, exchange of shares, liquidation, spin-off or
other similar change in capitalization, or any distribution to holders of Common
Stock other than a cash dividend, the number and class of shares available under
this Plan, the number and class of shares under each outstanding option, the
purchase price per share as set forth herein, shall be appropriately adjusted by
the Committee, such adjustments to be made in the case of outstanding options
without a change in the aggregate purchase price.
10. TREATMENT OF OPTION ON CHANGE OF CONTROL. Upon the consummation of a
merger, consolidation or other reorganization of the Company, completion of a
tender offer for more than 50% of the Company's outstanding capital stock or
sale of all or substantially all of the assets of the Company to any person
other than AKAUSA Limited and its affiliates or Xxxxxxx X. Xxxxxxxxxx and his
affiliates (a "Change of Control"), the following provisions shall apply:
(a) In the event of a Change of Control in which the
consideration received by the Company's shareholders in exchange for their
shares of the Company's Common Stock consists solely of cash, the Option shall
be deemed to have been exercised in full immediately prior to the consummation
of such Change of Control and, in connection with such exercise, Optionee shall
receive a cash amount equal to the difference between the exercise price of the
Option and the price per share of Common Stock received by the Company's
shareholders pursuant to such Change of Control.
(b) In the event of a Change of Control in which the
consideration received by the Company's shareholders in exchange for their
shares of the Company's Common Stock does not consist solely of cash, the Option
shall thereafter be exercisable for the number of shares of stock or other
securities and the amount of cash or other property, if any, that Optionee would
have received pursuant to such Change of Control in respect of the shares of
Common Stock underlying the Option had the Option been exercised immediately
prior thereto.
11. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of Optionee, acquire any rights hereunder.
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12. NOTICES. Any notice to the Company provided for in this Agreement
shall be addressed to it in care of its Chief Financial Officer as its main
office, and any notice to Optionee shall be addressed to Optionee's address on
file with the Company or a subsidiary corporation, or to such other address as
either may designate to the other in writing. Any notice shall be deemed to be
duly given if and when enclosed in a properly sealed enveloped and addressed as
stated above, and deposited. postage prepaid, in a post office or branch post
office regularly maintained by the United States government. In lieu of giving
notice by mail as aforesaid, any written notice under this Agreement may be
given to Optionee in person, and to the Company by personal delivery to its
Chief Financial Officer.
13. GOVERNING LAW. This Agreement shall be governed by, and interpreted
in accordance with, the internal laws of the State of California.
14. 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.
Please confirm your agreement to the foregoing by signing below where
indicated.
THE XXXXXX ENTERTAINMENT COMPANY,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
AGREED TO AND ACCEPTED:
/s/ Xxxxxxx X. Xxxxxxxxxx
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XXXXXXX X. XXXXXXXXXX
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