EXHIBIT 4.3
Option Number OP2004-___________
TNX TELEVISION HOLDINGS, INC.
INCENTIVE STOCK OPTION LETTER AGREEMENT
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 7 OF THE PLAN WHICH
DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND STATE SECURITIES
LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE EXERCISED AND BEFORE THE
COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS NO OBLIGATION TO REGISTER
THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF YOUR OPTION, AND IF IT
NEVER REGISTERS THE SHARES, YOU WILL NOT BE ABLE TO EXERCISE THE OPTION UNLESS
AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE PRESENT TIME, EXEMPTIONS
FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE VERY LIMITED AND
MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION OF THE OPTION. CONSEQUENTLY,
YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE OPTION TO RECEIVE SHARES. IN
ADDITION, YOU SHOULD CONSULT WITH YOUR TAX ADVISOR IN ADVANCE CONCERNING THE
RAMIFICATIONS TO YOU OF HOLDING OR EXERCISING YOUR OPTIONS OR HOLDING OR SELLING
THE SHARES UNDERLYING SUCH OPTIONS.
Date: ________
TO: _________________
We are pleased to inform you that you have been selected to receive an
option by the Administrator of the TNX Television Holdings, Inc. (the "Company")
2004 Employee, Director and Consultant Stock Option Plan (the "Plan"). The Plan
was adopted by the Board of Directors, and approved by the shareholders. When
you sign and return to the Company the Acceptance and Acknowledgment attached to
this Stock Option Agreement you will be entitled to receive an incentive option
for the purchase of shares of the Company's Common Stock, par value $.__ per
share ("Common Stock"), at an exercise price of $_______ per share subject to
the vesting provisions set forth herein. A copy of the Plan is attached and the
provisions thereof, including, without limitation, those relating to withholding
taxes, are incorporated into this Agreement by reference.
The terms of the option are as set forth in the Plan and in this
Agreement. The most important of the terms set forth in the Plan are summarized
as follow:
Number of Shares: The option granted to you covers an aggregate of
_________ shares of Common Stock.
Exercise Price: The exercise price per share of Common Stock subject to
your option is $____ per share (the "Exercise Price").
Adjustments: The number of shares of Common Stock subject to your option
and the Exercise Price may be subject to adjustment under certain circumstances
as described in the Plan.
Date of Xxxxx: The date of grant of the option is ________________.
Term: The term of the option is ten years from date of grant, unless
sooner terminated.
Vesting: Your option shall vest according to the following schedule,
provided you continue your relationship with the Company or a related
corporation
PERIOD OF YOUR CONTINUOUS
RELATIONSHIP WITH THE COMPANY PORTION OF TOTAL
OR A RELATED CORPORATION OPTION
FROM THE DATE OPTION IS GRANTED WHICH IS EXERCISABLE
After 1 year.......................
After 2 years......................
After 3 years......................
Exercise: The vested portion of the option may be exercised, in whole or
in part, but not as to any fractional shares, during the term of the option. You
should use a Notice of Exercise of Incentive Stock Option in the form attached
to this Agreement when you exercise the option. During your lifetime only you
can exercise the option. The Plan also provides for exercise of the option by
the personal representative of your estate or the beneficiary thereof following
your death.
Payment for Shares. The vested portion of this option may be exercised by
the delivery of:
a) Cash, personal check (unless, at the time of exercise, the
Administrator determines otherwise), certified or bank cashier's checks in
an amount equal to the aggregate Exercise Price for the number of shares
as to which the option is being exercised together with a properly
executed Notice of Exercise;
(b) Unless the Administrator in its sole discretion determines
otherwise, shares of the capital stock of the Company held by you having a
fair market value at the time of exercise, as determined by the
Administrator in accordance with the Plan, equal to the aggregate Exercise
Price for the number of shares as to which the option is being exercised;
(c) Unless the Administrator in its sole discretion determines
otherwise, your personal note, for full, partial or no recourse, bearing
interest payable not less than annually at no less than 100% of the
applicable Federal rate, as defined in Section 1274(d) of the Internal
Revenue Code of 1986, with or without the pledge of such shares as
collateral;
(d) Unless the Administrator in its sole discretion determines
otherwise, a properly executed Notice of Exercise together with
instructions to the Company to withhold from the shares that would
otherwise be issued upon exercise that number of shares having a fair
market value equal to the aggregate Exercise Price for the number of
shares as to which the option is being exercised; or
(e) Unless the Administrator in its sole discretion determines
otherwise, any combination of (a), (b), (c) and (d) above.
Upon receipt of written Notice of Exercise and payment and delivery of any
other required documentation, the Company shall deliver to the person exercising
the option a certificate or certificates for the appropriate number of shares of
Common Stock. It shall be a condition to the performance of the Company's
obligation to issue or transfer Common Stock upon exercise of this option that
you pay, or make provision satisfactory to the Company for the payment of, any
taxes which the Company is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise.
Termination: Your option will terminate immediately upon termination for
cause, as defined in the Plan, or ninety (90) days after cessation of your
relationship with the Company or a related corporation, unless cessation is due
to death or total disability, in which case (i) the portion of this option which
is vested at the time of such termination plus (ii) a pro rata amount of any
portion of this option subject to a periodic vesting schedule that would have
accrued on the next vesting date had you not died or become totally disabled
shall terminate one year after cessation of such relationship. All unvested
options, except those discussed under (ii) of the preceding sentence, will
terminate immediately upon the cessation of your relationship with the Company
or a related corporation for any reason, including, without limitation,
termination for cause, resignation, death or disability.
Transfer of Option: The option is not transferable except by will or by
the applicable laws of descent and distribution.
Hold back: In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the Securities Act, including the Company's initial public offering,
Grantee shall not directly or indirectly sell, make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any option or other contract for the
purchase of, purchase any option or other contract for the sale of, or otherwise
dispose of or transfer, or agree to engage in any of the foregoing transactions
with respect to, any option shares acquired under this Agreement without the
prior written consent of the Company or its underwriters. The period of such
restriction (the "Blackout Period") shall be in effect for such period of time
following the date of the final prospectus for the offering as may be requested
by the Company or such underwriters. In no event, however, shall such period
exceed 180 days. In the event of the declaration of a stock dividend, a
spin-off, a stock split, an adjustment in conversion ratio, a recapitalization
or a similar transaction affecting the Company's outstanding shares of Common
Stock without receipt of consideration, any new, substituted or additional
securities which are by reason of such transaction distributed with respect to
any option shares subject to the Blackout Period, or into which such option
shares thereby become convertible, shall immediately be subject to the
restrictions set forth herein. In order to enforce such restriction, the Company
may impose stop-transfer instructions with respect to the option shares acquired
under this Agreement until the end of the applicable stand-off period. The
Company's underwriters shall be beneficiaries of the agreement set forth in this
subsection. This subsection shall not apply to option shares registered in the
public offering under the Securities Act, and Grantee shall be subject to this
subsection only if the directors and officers of the Company are subject to
similar arrangements.
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Notice: All notices sent in connection with this option shall be in
writing and, if to the Company, shall be delivered personally to the President
of the Company or mailed to its principal office, addressed to the attention of
the President, and, if to you, shall be delivered personally or mailed to you at
the address noted on the attached Acceptance and Acknowledgment. Such addresses
may be changed at any time by notice from one party to the other.
It is the intention of the Company that this Plan comply in all respects
with Section 16(b) and Rule 16b-3 under the Securities Exchange Act of 1934 (the
"Exchange Act"), to the extent applicable, and, if any Plan provision is later
found not to be in compliance with such Section or Rule, as the case may be, the
provision shall be deemed null and void, and in all events the Plan shall be
construed in favor of its meeting the requirements of Section 16(b) and Rule
16b-3 under the Exchange Act. Notwithstanding anything in the Plan to the
contrary, the Board, in its absolute discretion, may bifurcate the Plan so as to
restrict, limit or condition the use of any provision of the Plan to
participants who are officers and directors or other persons subject to Section
16(b) of the Exchange Act without so restricting, limiting or conditioning the
Plan with respect to other participants.
All decisions or interpretations made by the Administrator with regard to
any question arising hereunder or under the Plan shall be binding and conclusive
on the Company and you.
This Agreement shall bind and inure to the benefit of the parties hereto
and the successors and assigns of the Company and, to the extent provided in the
Plan, your executors, administrators, legatees and heirs.
Please execute the Acceptance and Acknowledgment set forth below on the
enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
TNX Television Holdings, Inc.
By:
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ACCEPTANCE AND ACKNOWLEDGMENT
I, a resident of the State of _________, accept the stock option described
above granted under the TNX Television Holdings, Inc. 2004 Employee, Director
and Consultant Stock Option Plan, and acknowledge receipt of a copy of this
Agreement, including a copy of the Plan. I have read and understand this
Agreement and the Plan, including the provisions of Section 7 thereof. I further
understand and acknowledge that the exercise of the incentive stock option
described above implicates certain tax considerations and the Company has given
no tax advice with respect to the incentive stock option described above. I have
been given the opportunity to discuss the option with my tax advisors and I
understand the implications of exercising the option and holding or disposing of
the shares underlying the option.
Dated:
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Taxpayer I.D. Number Signature
By his or her signature below, the spouse of the Optionee, if such
Optionee is legally married as of the date of such Optionee's execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of this Agreement and the Plan.
Dated:
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Spouse's Signature
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Printed Name
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NOTICE OF EXERCISE
TNX Television Holdings, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Gentlemen:
I hereby exercise my right to purchase shares of Common Stock (the
"Shares") of TNX Television Holdings, Inc., a Delaware corporation (the
"Company"), pursuant to, and in accordance with, the TNX Television Holdings,
Inc. Incentive Stock Option Agreement ("Agreement") dated ____________. As
provided in that Agreement, I deliver herewith a certified or bank cashier's
check in the amount of the aggregate option price (unless alternative payment
methods have been approved by the Administrator). Please deliver to me stock
certificates representing the subject shares registered as follows:
Name:
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Address:
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Social Security Number:
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The aggregate exercise price is $ _______ (total number of shares to be
purchased x $_____, per share).
1. If the sale of the Shares and the resale thereof has not, prior to the
date hereof, been registered pursuant to a registration statement filed and
declared effective under the Securities Act of 1933, as amended (the "Act"), the
undersigned hereby agrees, represents, and warrants that:
(a) the undersigned is acquiring the Shares for his or her own
account (and not for the account of others), for investment and not with a
view to the distribution or resale thereof;
(b) by virtue of his or her position, the undersigned has access to
the same kind of information which would be available in a registration
statement filed under the Act;
(c) the undersigned is a sophisticated investor;
(d) the undersigned understands that he or she may not sell or
otherwise dispose of the Shares in the absence of either (i) a
registration statement filed under the Act or (ii) an exemption from the
registration provisions thereof; and
(e) the certificates representing the Shares may contain a legend to
the effect of subsection (d) of this Section 1.
2. If the sale of the Shares and the resale thereof has been registered
pursuant to a registration statement filed and declared effective under the Act,
the undersigned hereby represents and warrants that he or she has received the
applicable prospectus and a copy of the Company's most recent annual report, as
well as all other material sent to shareholders generally.
3. The undersigned acknowledges that the number of shares of Common Stock
subject to the Agreement is hereafter reduced by the number of shares of Common
Stock represented by the Shares.
4. The undersigned understands that there are certain tax implications to
his or her exercise of his or her right to purchase shares of Common Stock under
the Agreement. The undersigned further understands that it is his or her
obligation to confer with his or her own tax advisor with respect to such tax
implications.
Very truly yours.
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(signature)
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(please type or print name)
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