Exhibit 3.3
NONQUALIFIED STOCK OPTION AGREEMENT
Interactive ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Ltd.
This Nonqualified Stock Option Agreement (the "Agreement"), effective as of
[ ] [ ], [ ] (the "Date of Grant"), is made by and between Interactive
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Ltd., a Delaware corporation (the "Company"), and [ ] (the
"Participant").
Background
The Company has established the Interactive ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Ltd. Long-Term
Incentive Plan (the "Plan"). The Company wishes to grant to the Participant a
Nonqualified Stock Option pursuant to the terms of the Plan.
Therefore, in consideration of the mutual covenants contained in this Agreement
and other good and valuable consideration, the Company and the Participant agree
as follows:
1. Grant of Option. In consideration of service to the Company and for other
good and valuable consideration, the Company grants to the Participant a
Nonqualified Stock Option (the "Option") to purchase [ ] shares of the
Company's common stock (the "Common Stock"). The Company grants the Option
in accordance with the terms and conditions of the Plan and this
Agreement.
2. Option Price. The purchase price of each share of stock covered by the
Option shall be $[ ].
3. Adjustments in Option. If the outstanding shares of stock subject to the
Option are changed into or exchanged for a different number or kind of
shares of the Company or other securities of the Company by reason of
merger, consolidation, recapitalization, reclassification, stock split,
stock dividend or combination of shares, the shares subject to the Option
and the price per share shall be equitably adjusted to reflect such
changes. Such adjustment in the Option shall be made without change in the
total price applicable to the unexercised portion of the Option (except
for any change in the aggregate price resulting from rounding-off of share
quantities or prices) and with any necessary corresponding adjustment in
the Option price per share. Any such adjustment made by the Committee
shall be final and binding upon the Participant, the Company and all other
interested persons.
4. Person Eligible to Exercise Option. During the lifetime of the
Participant, only the Participant may exercise the Option or any portion
of the Option. After the death of the Participant, any exercisable portion
of the Option may, prior to the time when the Option becomes unexercisable
under the terms of the Plan, be exercised by the Participant's personal
representative or by any other person empowered to do so under the
Participant's will, trust or under then applicable laws of descent and
distribution.
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5. Manner of Exercise. The Option, or any portion of the Option, shall be
exercised only in accordance with the provisions of the Plan and this
Agreement. The person exercising the Option shall give to the Company a
written notice that shall: (i) state the number of Shares with respect to
which the Option is being exercised; and (ii) specify a date (other than a
Saturday, Sunday or legal holiday) not less than five nor more than ten
days after the date of such written notice, as the date on which the
Shares will be purchased. Such tender and conveyance shall take place at
the principal office of the Company during ordinary business hours, or at
such other hour and place agreed upon by the Company and the person or
persons exercising the Option. On the date specified in such written
notice, the Company shall accept payment for the Option Shares in cash, by
bank or certified check, by wire transfer, or by such other means as may
be approved by the Committee and shall deliver to the person or persons
exercising the Option in exchange therefor an appropriate certificate or
certificates for fully paid nonassessable Shares or undertake to deliver
certificates within a reasonable period of time. In the event of any
failure to take up and pay for the number of Shares specified in such
written notice on the date set forth therein (or on the extended date as
above provided), the right to exercise the Option shall terminate with
respect to such number of Shares, but shall continue with respect to the
remaining Shares covered by the Option and not yet acquired pursuant
thereto.
The person who exercises the Option shall warrant to the Company that, at
the time of such exercise, such person is acquiring his or her Option
Shares for investment and not with a view to, or for or in connection
with, the distribution of any such Shares, and shall make such other
representations, warranties, acknowledgments, and affirmations, if any, as
the Committee may require. In such event, the person acquiring such Shares
shall be bound by the provisions of an appropriate legend which shall be
endorsed upon the certificate(s) evidencing his or her Option Shares
issued pursuant to such exercise. The Company may delay issuance of the
Shares until completion of any action or obtaining any consent that the
Company deem necessary under any applicable law (including without
limitation state securities or "blue sky" laws).
6. Conditions to Issuance of Stock Certificates. The shares of stock
deliverable upon the exercise of the Option, or any portion thereof, may
be either previously authorized but unissued shares or issued shares which
have been reacquired by the Company. Such shares shall be fully paid and
nonassessable.
7. Rights of Shareholders. The Participant shall not be, nor have any of the
rights or privileges of, a shareholder of the Company in respect of any
shares purchasable upon the exercise of any part of the Option unless and
until certificates representing such shares shall have been issued by the
Company to the Participant.
8. Vesting and Exercisability. A Participant's interest in the Option shall
vest according to the provisions of this Section 8 and shall be
exercisable as to not more than the vested percentage of the shares
subject to the Option at any point in time. To the extent the Option is
either unexercisable or unexercised, the unexercised portion shall
accumulate
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until the Option both becomes exercisable and is exercised, subject to the
provisions of Section 9 of the Agreement. The Option shall become vested
as follows:
Date Vested Percentage of Option
---- ---------------------------
The Committee, in its sole and absolute discretion, may accelerate the
vesting of the Option at any time.
9. Duration of Option. Except as specified below, the Option shall expire on
[ ], [ ]. Notwithstanding the foregoing, the Option may expire prior to [
], [ ], in the following circumstances:
a. In the case of the Participant's death, the Option shall expire on
the one-year anniversary of the Participant's death.
b. If the Participant's employment or affiliation with the Company
terminates as a result of his total and permanent disability, the
Option will expire on the one-year anniversary of the Participant's
last day of employment.
c. If the Participant ceases employment or affiliation with the Company
for any reason other than death or disability, the Option shall
expire 90 days following the last day that the Participant is
employed by the Company.
d. Notwithstanding any provisions set forth above in this Section 9, if
the Participant shall (i) commit any act of malfeasance or
wrongdoing affecting the Company or its affiliates, (ii) breach any
covenant not to compete or employment agreement with the Company or
any affiliate, or (iii) engage in conduct that would warrant the
Participant's discharge for cause, any unexercised part of the
Option shall expire immediately upon the earlier of the occurrence
of such event or the last day the Participant is employed by the
Company.
10. Administration. The Committee shall have the power to interpret this
Agreement and to adopt such rules for the administration, interpretation
and application of the Agreement as are consistent herewith and to
interpret or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith
shall be final and binding upon the Participant, the Company and all other
interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with
respect to this Agreement or any similar agreement to which the Company is
a party.
11. Transfer of Option. Unless otherwise permitted by applicable laws and
approved in advance by the Committee, the Option shall not be transferable
by the Participant and shall be exercisable, during the Participant's
lifetime, only by such Participant or, in the event of the Participant's
incapacity, his guardian or legal representative. Except as
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otherwise permitted herein, the Option shall not be assigned, pledged, or
hypothecated in any way (whether by operation of law or otherwise) and
shall not be subject to execution, attachment, or similar process and any
attempted transfer, assignment, pledge, hypothecation or other disposition
of the Option or of any rights granted thereunder contrary to the
provisions of this Section 11, or the levy of any attachment or similar
process upon an option or such rights, shall be null and void. This
Section 11 shall not prevent transfers by will or by the applicable laws
of descent and distribution.
12. Shares to be Reserved. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of stock as
will be sufficient to satisfy the requirements of this Agreement.
13. Notices. Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary and any
notice to be given to the Participant shall be addressed to him at the
address given beneath his signature below. By a notice given pursuant to
this Section 13, either party may hereafter designate a different address
for notices to be given to him. Any notice which is required to be given
to the Participant shall, if the Participant is then deceased, be given to
the Participant's personal representative if such representative has
previously informed the Company of his status and address by written
notice under this Section 13. Any notice shall have been deemed duly given
when enclosed in a properly sealed envelope addressed as aforesaid,
deposited (with postage prepaid) in a United States postal receptacle.
14. Titles. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
15. Incorporation of Plan by Reference. The Option is granted in accordance
with the terms and conditions of the Plan, the terms of which are
incorporated herein by reference, and the Agreement shall in all respects
be interpreted in accordance with the Plan. Any term used in the Agreement
that is not otherwise defined in the Agreement shall have the meaning
assigned to it by the Plan.
The Company and the Participant have executed this Agreement effective as of the
date first written above.
INTERACTIVE ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LTD.
By:______________________________
Its:
_________________________________
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