EXHIBIT 10.16
MIH LIMITED
STOCK OPTION AGREEMENT
(DIRECTOR'S STOCK OPTION PLAN)
THIS AGREEMENT is entered into as of the 4th day of October 1999,
between MIH LIMITED, a company incorporated in the British Virgin Islands
(the "Company"), and _________________ (the "Participant").
RECITALS
A. The Board of Directors of the Company (the "Board") has established
the Company's Director's Stock Option Plan (the "Plan") in order to provide
certain directors of the Company with a favorable opportunity to acquire
shares of the Company's Class A Ordinary Shares ("Stock").
B. The Participant is a Participating Director as contemplated by the
Plan and it is in the best interests of the Company and its stockholders to
grant the option described in this Agreement to the Participant as an
inducement to remain in the service of the Company and represent shareholder
interests by overseeing the general operations of the Company and as an
incentive for promoting efforts during such service.
NOW, THEREFORE, it is agreed as follows:
1. DEFINITIONS AND INCORPORATION. Unless otherwise defined herein or
the context otherwise requires, the capitalized terms used in this Agreement
shall have the meanings given to such terms in the Plan. The terms,
conditions and limitations set out in the Plan are hereby incorporated in and
made a part of this Agreement as if fully set out herein. The Participant
hereby acknowledges that he or she has received a copy of the Plan.
2. GRANT OF OPTION. Pursuant to the Plan, the Company hereby grants to
the Participant as of the date hereof the option to purchase all or any
part of an aggregate of 20,000 (twenty thousand) shares of Stock (the
"Option"), subject to adjustment in accordance with Section 8 of the Plan.
The Option is not intended to qualify as an incentive stock option under the
US Internal Revenue Code of 1986, as amended.
3. OPTION PRICE. The price to be paid for Stock upon exercise of the
Option or any part thereof shall be US$28.75 per share (the "Exercise Price").
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4. RIGHT TO EXERCISE. Subject to the conditions set out in this
Agreement, the right to exercise the Option shall accrue in accordance with
Schedule 1 attached hereto and hereby made a part hereof.
5. EARLY TERMINATION OF SERVICE. Notwithstanding any other provision
of this Agreement, including Section 8 or Section 9 hereof, no portion of the
Option may be exercised until six months from the date hereof.
6. SECURITIES LAW REQUIREMENTS. No part of the Option shall be
exercised if legal counsel to the Company determines that any applicable
registration requirement under the US Securities Act of 1933 (the
"Securities Act") or any other applicable requirement of Federal or state law
has not been met.
7. TERM OF OPTION. The Option shall terminate in any event on the
earliest of (a) 4th October, 2009, at 23h59 (Central European Time), (b) the
expiration of the period described in Clause 8 below or (c) the expiration of
the period described in Clause 9 below.
8. EXERCISE FOLLOWING CESSATION OF SERVICE. If the Participant's
service with the Company ceases for any reason whatever, whether voluntarily
or involuntarily, with or without cause, other than death, Disability or
Normal Board Retirement, the Option (to the extent it has not previously been
exercised and is exercisable at the time of cessation) may be exercised
within (3) months after the date of such cessation or until the expiration of
the stated term of the Option, whichever period is shorter. If the
Participant dies or suffers a Disability within the three (3) month period,
the Option shall remain exercisable (to the extent it has not previously been
exercised and is exercisable at the time of the death or Disability) for one
(1) year after the death or Disability or until the expiration of the stated
term of the Option, whichever period is shorter. In case of death, the
exercise may be made by the Participant's designated beneficiary or, if no
such beneficiary has been designated, by the Participant's estate or by the
person or persons who acquire the right to exercise it by bequest or
inheritance provided that such person consents in writing to abide by and be
subject to the terms of the Plan and this Agreement and such writing is
delivered to the Company.
9. EXERCISE FOLLOWING, DISABILITY OR NORMAL BOARD RETIREMENT. If the
Participant's service with the Company ceases by reason of the Participant's
death, Disability or Normal Board Retirement, the right to exercise the
Option shall immediately accrue in full and the Option shall, subject to
Clause 5 above, be exercisable for three (3) years after the date of
cessation or until the expiration of the stated term of the Option, whichever
period is shorter. If the Participant dies or suffers a Disability within the
three (3) year period following Normal Board Retirement, the Option shall
remain fully exercisable for three (3) years after the death or Disability or
until the expiration of the stated term of the Option, whichever period is
shorter. In case of death, the exercise may be made by the Participant's
designated beneficiary or, if no such beneficiary has been designated, by the
Participant's estate or by the person or persons who acquire the right to
exercise it by bequest or inheritance provided that such person consents in
writing to abide by and be subject to the terms of the Plan and this
Agreement and such writing is delivered to the Company.
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10. TIME OF CESSATION OF SERVICE. For the purposes of this Agreement,
the Participant's service shall be deemed to have ceased on the earlier of -
(a) the date when the Participant's service in fact ceased; or
(b) except in the case of Normal Board Retirement, the date when the
Participant gave or received written notice that his or her service
is to cease.
11. NON-TRANSFERABILITY. The Option shall be exercisable during the
Participant's lifetime only by the Participant or by the Participant's
guardian or legal representative and shall be non-transferable, except that
the Participant may transfer all or any part of the Option by will or by the
laws of inheritance. Except as otherwise provided herein, any attempted
alienation, assignment, pledge, hypothecation, attachment, execution or
similar process, whether voluntary or involuntary, with respect to all or any
part of the Option or any right thereunder, shall be null and void and, at the
Company's option, shall cause all of the Participant's rights under this
Agreement to terminate.
12. EFFECT OF EXERCISE. Upon exercise of all or any part of the
Option, the number of shares of Stock subject to the Option under this
Agreement shall be reduced by the number of shares with respect to which such
exercise is made.
13. EXERCISE OF OPTION. The Option may be exercised by delivering to
the Company -
(a) written notice of exercise in substantially the form prescribed from
time to time by the Administrator; and
(b) full payment of the Exercise Price for each share of Stock purchased
under the Option.
Such notice shall specify the number of shares of Stock with respect to
which the Option is exercised and shall be signed by the person exercising
the Option. If the Option is exercised by a person other than the
Participant, such notice shall be accompanied by proof, satisfactory to the
Company, of such person's right to exercise the Option. The Purchase Price
shall be payable -
(i) In U.S. dollars in cash (by cheque);
(ii) by delivery of shares of Stock registered in the name of the
Participant having a Fair Market Value at the time of exercise
equal to the amount of the Purchase Price;
(iii) any combination of the payment of cash and the delivery of Stock;
or
(iv) as otherwise approved by the Administrator in its sole and
absolute discretion.
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14. WITHHOLDING TAXES. The Company may require the Participant to
deliver payment, upon exercise of the Option, of all withholding taxes (in
addition to the Purchase Price) with respect to the difference between the
Purchase Price and the Fair Market Value of the Stock acquired upon exercise,
which payment shall be made-
(a) in cash;
(b) upon written approval from the Administrator, by delivery of shares
of Stock registered in the name of the Participant, or by the Company
not issuing such number of shares of the Stock subject to the
Option, having a Fair Market Value at the time of exercise in the
amount to be withheld; or
(c) upon written approval from the Administrator, any combination of (a)
and (b) above.
15. ISSUE OF SHARES. Subject to the foregoing conditions, the Company,
as soon as reasonably practicable after receipt of a proper notice of
exercise and without transfer or issue tax or other incidental expense to the
person exercising the Option, shall deliver to such person at the principal
office of the Company, or such other location as may be acceptable to the
Company and such person, one or more certificates for the shares of Stock
with respect to which the Option is exercised. Such shares shall be fully
paid and non-assessable and shall be issued in the name of such person.
However, on request by the Participant to the Company, such shares may be
issued in the names of the Participant and his or her spouse or in the name
of such trust or corporation as may be stipulated in writing to the Company
by the Participant.
16. RIGHTS AS SHAREHOLDER. Neither the Participant nor any other
person entitled to exercise the Option shall have any rights as a shareholder
of the Company with respect to the Stock subject to the Option until a
certificate for such shares has been issued to him or her following the
exercise of the Option.
17. LOCK-UP. In the event that the Company files a registration
statement with respect to an underwritten public offering under the US
Securities Act in which any class of the Company's equity securities is to be
offered, the Participant shall not effect any public sale or distribution of
any shares of the Stock or any of the Company's other equity securities, or
of any securities convertible into, or exchangeable or exercisable for, such
securities, during the period beginning ninety (90) days prior to the filing
of such registration statement with the US Securities and Exchange Commission
and ending on such date after such registration statement has become
effective as shall be specified by the managing underwriter of such public
offering, not to exceed 180 days from the close of the offering.
18. NOTICES. Any notice to the Company contemplated by this Agreement
shall be addressed to it, care of MIH Limited, Xxxxxxxxxxxxx 00-00, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx, or such other address as the Company may specify
in a notice to the Participant; and any notice to the Participant shall be
addressed to him or her at the address on file with the Company on the date
hereof or at such other address as
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he or she may hereafter designate in writing. Notice shall be deemed to have
been given upon receipt or, if sooner, eight (8) days after such notice has
been deposited, postage prepaid, registered air mail, addressed to the
address specified in the immediately preceding sentence.
19. INTERPRETATION. The interpretation, construction, performance and
enforcement of this Agreement and of the Plan shall lie within the sole
discretion of the Administrator, and the Administrator's determinations shall
be conclusive and binding on all interested persons.
20. CHOICE OF LAW. This Agreement shall be governed by and construed
in accordance with the internal substantive laws (not the law of choice of
laws) of the Island of Jersey.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, in the case of the Company by its duly authorized officer, as of
the day and year first above written.
MIH LIMITED
BY_____________________________________
AN AUTHORIZED OFFICER
_____________________________________
PARTICIPANT
_____________________________________
(PLEASE PRINT PARTICIPANT'S NAME)
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SCHEDULE 1
RIGHT TO EXERCISE
Subject to the conditions set out in this Agreement, the right to
exercise the Option shall accrue as follows:
(i) a maximum of 25% of the Stock subject to the Option at any time
after the expiry of one year after the effective date of this
Agreement;
(ii) a maximum of 50% of the Stock subject to the Option at any time
after the expiry of two years after the effective date of this
Agreement;
(iii) a maximum of 75% of the Stock subject to the Option after the
expiry of three years after the effective date of this Agreement,
(iv) the balance of the Stock subject to the Option after the expiry
of four years after the effective date of this Agreement,
provided that the Administrator may in its sole and absolute discretion
permit the earlier exercise of the whole or any part of the Option.
