Exhibit 4(dh)
NCT GROUP, INC.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 17, 2003, between NCT Group,
Inc., a Delaware corporation (the "Company"), and Acme Associates, Inc., a New
Jersey corporation ("Optionee").
The Company hereby grants to Optionee options to acquire Common Stock of
the Company upon the following terms and conditions:
1. Grant of Options. The Company grants to Optionee options (the "Options")
to purchase up to Ninety-Nine Million Seven Hundred Fifty Thousand (99,750,000)
fully paid and nonassessable shares of the Common Stock, par value $.01 per
share, of the Company (the "Shares"), to be issued upon the exercise of the
Options, as set forth below. Such Options are granted pursuant to the December
17, 2003 Seventh Amendment of the September 30, 2002 Consulting Agreement
between the Company and Optionee (the "Agreement").
2. Exercise Price. The exercise price of the Options shall be $.037 per
Share. The Company shall pay all original issue or transfer taxes on the
exercise of the Options.
3. Vesting of Options. The Options shall vest as of the date hereof.
4. Expiration of Options. The Options shall expire and not be exercisable
after December 17, 2008.
5. Non-Assignability of Options. Except as set forth in Section 12 hereof,
the Options shall not be given, granted, sold, exchanged, transferred, pledged,
assigned or otherwise encumbered or disposed of by Optionee and shall be
exercisable only by Optionee or its agent or attorney-in-fact.
6. Method of Exercise of Options. Optionee shall notify the Company by
written notice sent by certified mail, return receipt requested, addressed to
the Company's principal office, or by hand delivery to such office, as to the
number of Shares which Optionee desires to purchase under the options, which
written notice shall be accompanied by Optionee's check payable to the order of
the Company for the full option price of such Shares. As soon as practicable
after the receipt of such written notice, the Company shall, at its principal
office, tender to Optionee a certificate or certificates issued in Optionee's
name evidencing the Shares purchased by Optionee hereunder.
7. Shares of Common Stock as Investment. By accepting the Options, Optionee
agrees that any and all Shares purchased upon the exercise thereof shall be
acquired for investment and not for distribution, and upon the issuance of any
or all of the Shares subject to the Options, Optionee shall deliver to the
Company a representation in writing that such Shares are being acquired in good
faith for investment and not with a view toward resale or distribution. The
Company may place an appropriate restrictive legend on the certificate or
certificates evidencing such Shares.
8. Adjustments upon Changes in Capitalization. In the event of changes in
the outstanding Common Stock of the Company by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations, exchanges of
shares, separations, reorganization or liquidations, the number of Shares
issuable upon the exercise of the Options, the exercise price thereof and any
limitation on exercise set forth in Section 3 hereof shall be correspondingly
adjusted by the Company. Any such adjustment in the number of Shares shall apply
proportionately to only the then unexercised portion of the Options. If
fractional shares
2
would result from any such adjustment, the adjustment shall be revised to the
next lower whole number of shares.
9. No Rights as Stockholders. Optionee shall have no rights as a
stockholder in respect to the shares as to which the Options shall not have been
exercised and payment made as herein provided.
10. Board Approval. The Option grants described in Section 1 hereof have
been approved by the Board of Directors of the Company.
11. Notices. Notices, demands and other communications given under this
Stock Option Agreement shall be in writing and shall be deemed to have been
given when delivered (if personally delivered), on the scheduled date of
delivery (if delivered via commercial courier), three days after mailed (if
mailed by certified or registered mail, return receipt requested) or when sent
by facsimile (if sent by facsimile with evidence of successful transmission
retained by the sender); provided, however, that failure to give proper and
timely notice as set forth in the "with a copy to" provisions below shall not
invalidate a notice properly and timely given to the associated party. Unless
another address or facsimile number is specified by notice hereunder, all
notices shall be sent as follows:
If to Optionee: with a copy to:
-------------- --------------
Acme Associates, Inc. Xxxxx Xxxxx, Esq.
000 Xxxxx Xxxx Xx. Xxxxx & Xxxxxxxxx
Xxxxxxxx, XX 00000 000 Xxxxx 00
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000 Facsimile: 973-361-1644
--------------------------------------------------------------------------------
If to the Company: with a copy to:
----------------- --------------
NCT Group, Inc. NCT Group, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
3
Westport, CT 06880 Xxxxxxxx, XX 00000
Attention: Chief Financial Officer Attention: General Counsel
Facsimile: 000-000-0000 Facsimile: 000-000-0000
12. Miscellaneous. This Stock Option Agreement may be amended, and any
provision of this Stock Option Agreement may be waived, only via a written
instrument executed by both parties hereto. No course of dealing between or
among any persons having any interest in this Stock Option Agreement will be
deemed effective to modify or amend any part of this Stock Option Agreement or
any rights or obligations of any person under or by reason of this Stock Option
Agreement. This Stock Option Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, except that (a) the Company may not assign
this Stock Option Agreement or any of the Company's rights, interests or
obligations hereunder except with the prior written consent of Optionee; and (b)
Optionee may not assign this Stock Option Agreement or any of Optionee's rights,
interests or obligations hereunder except (i) with the prior written consent of
the Company, or (ii) to an individual that controls Optionee (or a family member
thereof) or (iii) to an entity that controls, is controlled by or is under
common control with Optionee. Whenever possible, each provision of this Stock
Option Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Stock Option Agreement is
held to be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Stock Option Agreement. This Stock Option Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes any prior understandings, agreements or representations by or between
the
4
parties, written or oral, with respect to such subject matter. To the extent of
any inconsistency between the Agreement and this Stock Option Agreement, this
Stock Option Agreement shall prevail. This Stock Option Agreement may be
executed in one or more counterparts, any one of which need not contain the
signatures of more than one party, and all such counterparts taken together
shall constitute one and the same instrument. This Stock Option Agreement shall
be governed by the internal laws of the State of Delaware, without regard to
conflicts of laws principles. The parties hereto hereby submit to the exclusive
jurisdiction of the United States Federal Courts located in the state of New
Jersey with respect to any dispute arising under this Stock Option Agreement.
IN WITNESS WHEREOF, the parties have executed this Stock Option Agreement
as of the day and year first above written.
NCT GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
Chairman & Chief Executive Officer
ACME ASSOCIATES, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name:
------------------------------
Title:
------------------------------
5
OPTION EXERCISE FORM
(To be executed by the Optionee in order to exercise the Option)
TO: NCT Group, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
The undersigned hereby irrevocably elects to exercise the within Option to
the extent of purchasing __________ shares of Common Stock, par value $.01 per
share, of NCT Group, Inc. (the "Shares") and hereby makes payment at the rate of
$___.____ per share, or an aggregate of $_________, in payment therefor.
The undersigned represents, warrants and certifies as follows:
(a) Optionee is acquiring the Shares in good faith for purposes of
investment and not with a view to the resale or distribution thereof.
(b) All offers and sales of the Shares shall be made pursuant to an
effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), or pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the 1933
Act.
Dated: ___________________, 20____
----------------------------------
(print name of Optionee)
By:
----------------------------------
Name:
-------------------------
Title:
-------------------------
6
