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EXHIBIT 4.3
NONQUALIFIED STOCK OPTION AGREEMENT NQSO-LA-001
THIS NONQUALIFIED STOCK OPTION AGREEMENT ("Agreement") is made
and entered into on December 16, 1997, by and between WANDERLUST INTERACTIVE,
INC., a Delaware corporation ("Company"), and XXX XXXXX, III ("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to the
Optionee, on the terms and subject to the conditions set forth in this
Agreement, the right and option (the "Option") to purchase all or any part of
an aggregate of 700,000 shares (the "Option Shares") of the Company's common
stock, such number being subject to adjustment as provided in Section 8 hereof.
It is understood by the parties hereto that the Option is not intended to
qualify as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. Option Exercise Price. The exercise price for the Option
Shares shall be $0.625 per share. The exercise price shall be paid in full as
provided in Section 9 hereof.
3. Term of Option. Subject to the provisions of Section 7
hereof, the term of the Option shall for a period of ten (10) years from the
date hereof.
4. Exercisability of Option.
4.1 Exercise Period. Subject to the provisions of
Section 4(b) hereof, the Option shall be exercisable in accordance with the
following schedule:
Percentage (Number)
of Option Shares
Date Purchasable
---- ----------------
On or after December 31, 1997 8-1/3% ( 58,333)
On or after March 31, 1998 6-2/3% (116,666)
On or after June 30, 1998 25% (174,999)
On or after September 30, 1998 33-1/3% (233,332)
On or after December 31, 1998 41-2/3% (291,665)
On or after March 31, 1999 50% (349,998)
On or after June 30, 1999 58-1/3% (408,331)
On or after September 30, 1999 66-2/3% (466,664)
On or after December 31, 1999 75% (524,997)
On or after March 31, 2000 83-1/3% (583,330)
On or after June 30, 2000 91-2/3% (641,663)
On or after September 30, 2000 100% (700,000)
The Optionee's right to exercise the Option shall be cumulative as to the
Option Shares covered thereby.
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4.2 Registration of Option Shares. The Company's grant
of the Option is based upon the assumption that the Optionee's exercise of the
Option and the Company's issuance of the Option Shares as a result of such
exercise will be exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act"). In the event that the Company's assumption is
erroneous, the Option may not be exercised unless and until a registration
statement under the Securities Act relating to the Option Shares shall be in
effect, or unless and until the issuance of the Option Shares upon the exercise
of the Option shall be exempt from registration under the Securities Act, in
either of which events the term of the Option shall be deemed to have been
automatically extended through and including a period of ninety (90) days from
and after the date that such registration statement under the Securities Act
relating to the Option Shares first becomes effective or the date that the
issuance of the Option Shares upon the exercise of the Option first becomes
exempt from registration under the Securities Act, as the case may be. In this
regard, the Company shall use its best efforts to either register the Option
Shares in accordance with the registration requirements of the Securities Act
or to comply with any exemption therefrom with regard to the issuance of the
Option Shares. The Company shall promptly notify Optionee of any automatic
extension in the term of the Option in the event the foregoing provisions
become applicable. In all events, the Optionee shall give a written
representation satisfactory to legal counsel to the Company upon his exercise
of the Option that he is acquiring the Option Shares for investment purposes
and not with a view to, or for resale in connection with, the distribution of
any Option Shares or other securities of the Company.
5. No Shareholder Rights Prior to Exercise. The Optionee shall
not have any of the rights of a shareholder of the Company with respect to the
Option Shares except to the extent that one or more certificates for the Option
Shares shall be delivered to him upon the due exercise of the Option.
6. Nontransferability of Option. The Option shall not be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution, and the Option may be exercised during the lifetime of the
Optionee only by him. More particularly, but without limiting the generality
of the foregoing, the Option may not be assigned, transferred (except upon the
death of the Optionee), pledged or hypothecated in any way, shall not be
assignable by operation of law and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, and the levy of any execution, attachment or similar process upon the
Option, shall be null and void and without effect.
7. Nonsurvival of Company. Where dissolution or liquidation of
the Company or any merger or combination in which the Company is not the
surviving corporation is involved, the Option shall terminate as of the
effective date of such liquidation, dissolution, merger or combination to the
extent that the Option is not assumed by, or
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replaced by equivalent options granted by, the surviving corporation, if any,
in such liquidation, dissolution, merger or combination.
8. Changes in Capital Structure. In the event that the
outstanding shares of common stock of the Company are changed into or exchanged
for a different number or kind of shares or other securities of the Company or
of another corporation by reason of merger, consolidation, other
reorganization, recapitalization, reclassification, combination of shares,
stock dividend, stock split or reverse stock split, the rights of the Optionee
shall be appropriately adjusted both as to the number of Option Shares and the
exercise price for the Option Shares.
9. Method of Exercising Option.
(a) Subject to the terms and conditions of the Plan and
this Agreement, the Option may be exercised by written notice ("Exercise
Notice") from the Optionee or other person entitled to exercise the Option
delivered to the Company stating the election to exercise the Option and the
number of the Option Shares in respect of which it is being exercised, and
shall be signed by the person or persons so exercising the Option. The
Exercise Notice shall be accompanied by the full exercise price for the Option
Shares in respect of which the Option is being exercised. In the event the
Option shall be exercised by any person or persons other than the Optionee, the
Exercise Notice shall be accompanied by appropriate proof of the right of such
person or persons to exercise the Option.
(b) Payment of the exercise price shall be made: (i) in
cash or by certified check or by bank draft made payable to the Company; (ii)
subject to any legal restrictions on the repurchase or redemption of shares of
the Company's common stock by the Company, by the delivery of shares of the
Company's common stock having a then "fair market value" equal to the aggregate
purchase price in respect of the Option Shares then being purchased, which
"fair market value" shall be determined in accordance with the provisions of
Article 7(a) of the Plan; or (iii) any combination of (i) or (ii) above.
(c) The certificate or certificates for the Option Shares
in respect of which the Option shall have been exercised shall be registered in
the name of the person or persons exercising the Option, or, if the Option is
exercised by the Optionee and if the Optionee shall so request in the Exercise
Notice, shall be registered either in the name of the Optionee and his spouse
jointly, with right of survivorship, or in the name of himself and/or his
spouse as trustee(s) of a trust for the benefit of himself and/or his spouse,
and shall be delivered as provided above to or upon the written order of the
person or persons exercising the Option.
All of the Option Shares purchased upon the exercise of the Option as provided
herein shall, when issued, be fully paid and nonassessable.
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10. Restrictions on Transfer of Option Shares. Optionee, by
acceptance of this Option, represents and warrants to the Company as follows:
(a) Optionee has been advised and understands that: (i)
the Option has been issued in reliance upon exemptions from registration under
the Securities Act and applicable state statutes; (ii) the exercise of the
Option and resale of the Option Shares have not been registered under the
Securities Act or applicable state statutes and the Option Shares must be held
and may not be sold, transferred or otherwise disposed of for value unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available; (iii) the Company is under no obligation to register
the resale of the Option Shares under the Securities Act or the applicable
state statutes; (iv) in the absence of registration under the Securities Act,
the resale of the Option Shares may be practicably impossible; and (v) the
Company's registrar and transfer agent will maintain stop-transfer instructions
against registration or transfer of the Option Shares and any certificate
issued upon exercise of the Option representing the Option Shares will bear on
its face a legend in substantially the following form restricting the resale of
the Option Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND ARE "RESTRICTED SECURITIES"
WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE
SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT."
(b) Prior to one year from the date the Option has been
exercised and the Option Shares purchased as a result of such exercise have
been fully paid for, the Company may refuse to allow the transfer of the Option
Shares unless the holder thereof provides an opinion of legal counsel
reasonably satisfactory to the Company or a "no action" letter or interpretive
response from the staff of the Securities and Exchange Commission to the
effect that the transfer is proper; further, unless such opinion letter or
response states that the Option Shares are free of any restrictions under the
Securities Act, the Company may refuse to allow the transfer of the Option
Shares to any transferee who does not furnish in writing to the Company the
same representations and agree to the same conditions with respect to such
Option Shares as are set forth herein. Notwithstanding any of the foregoing,
the Company may refuse to allow the transfer of the Option Shares if any
circumstances are present reasonably indicating that the transferee's
representations are not accurate.
(c) After one year but prior to two years from the date
the Option has been exercised and the Option Shares purchased as a result of
such exercise have been fully paid for, the Company may refuse to
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transfer the Option Shares unless the holder either (i) meets the requirements
of subparagraph (b) above; or (ii) resells such Option Shares in accordance
with Rule 144 promulgated under the Securities Act and furnishes to the Company
written assurances of compliance therewith in the form of a copy of the Notice
of Form 144 and appropriate letters of compliance from the holder of such
Option Shares and the securities broker- dealer to or through which such Option
Shares are being resold. No opinion of counsel for the holder of the Option
Shares shall be required respecting resales in reliance on Rule 144 pursuant to
clause (ii) of this subparagraph (c).
(d) After two years from the date the Option has been
exercised and the Option Shares purchased as a result of such exercise have
been fully paid for, the Company shall, upon the written request of any person
who has held the Option Shares for two years (excluding any tolling period
provided for by Rule 144) and who is not, and has not been during the preceding
three months, an affiliate of the Company, reissue to such holder in such names
and denominations as the holder shall request, one or more certificates for
such Option Shares without any restriction whatsoever on their further transfer
and cancel any and all stop-transfer instructions regarding such Option Shares
on the books and records of the Company.
11. Adequate Authorized Capitalization. The Company shall at all
times during the term of the Option reserve and keep available or otherwise
have authorized such number of shares of the Company's common stock as will be
sufficient to satisfy the requirements of this Agreement, shall pay all fees
and expenses necessarily incurred by the Company in connection therewith, and
shall from time to time use its best efforts to comply with all laws and
regulations which, in the opinion of legal counsel to the Company, shall be
applicable thereto.
12. Notices. All notices, requests, demands and other
communications called for or contemplated hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered or when
mailed by United States certified or registered mail, postage prepaid,
addressed to the following parties or their successors in interest at the
following addresses, or at such other addresses as the parties may designate by
written notice in the manner aforesaid:
If to the Company: Wanderlust Interactive, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: President and CEO
If to Optionee: (See address on signature page)
13. Successors and Assigns. Subject to the limitations on
transferability contained in Section 6 hereof, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, the Company's
successors in interest and assigns, and the Optionee's permitted successors in
interest.
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14. Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
"Company" "Optionee"
WANDERLUST INTERACTIVE, INC. XXX XXXXX, III
By:__________________________________ _______________________________
Xxxxxxx Xxxxxxxxxx, Vice President Signature
_______________________________
Number and Street
_______________________________
City, State and Zip Code
(If Optionee is unmarried as of
the date hereof, then he shall
sign his name again below.)
I certify that, as of the date
hereof, I am not married.
_______________________________
Name of Optionee
