EXHIBIT 4.4
INTERNATIONAL POST LIMITED
(FORMERLY, INTERNATIONAL POST GROUP, INC.)
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 15, 1994 is made by and
between International Post Limited (formerly, International Post Group Inc.), a
Delaware corporation (the "Company") and Xxxxxxx X. Xxxxxx (the "Optionee").
WHEREAS, the Company desires to grant a stock option to the
Optionee and the Optionee desires to accept such stock option;
NOW, THEREFORE, the Company and the Optionee agree as follows:
1. DEFINITIONS
Any capitalized term which is not defined in this Agreement
shall have the meaning given such term under the Company's 1994 Long Term
Incentive Plan (the "Plan"). The following terms shall have the meaning
specified below, unless the context clearly indicates to the contrary:
"Change in Control" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Date" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Price" shall have the meaning set forth in
Section 8.3 of the Plan, as in effect on the date hereof.
"Code" shall mean the Internal Revenue Code of 1986.
"Committee" shall mean the Compensation Committee of the Board
of Directors of the Company, appointed as provided in the Plan.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Share" shall mean a share of the Company's Common Stock,
$0.01 par value.
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2. GRANT OF OPTION.
2.1 Grant; Grant Date
The Company hereby grants to the Optionee the right and option
to purchase from the Company all or any part of an aggregate of 30,000 Shares
upon the terms and conditions set forth in this Agreement. The Grant Date of the
Option shall be February 15, 1994. The Optionee hereby accepts the Option, and
agrees to be bound by all the terms and provisions of this Agreement.
2.2 Adjustments in Option
In the event that the outstanding Shares subject to the Option
are changed into or exchanged for a different number or kind of shares or
securities of the Company, or of another corporation, by reason of
reorganization, merger or other subdivision, consolidation, recapitalization,
reclassification, stock split, issuance of warrants, stock dividend or
combination of shares or similar event, Holdings shall make an appropriate and
equitable adjustment in the Option, whether in respect to the securities which
are subject thereto or any of the terms or exercise thereof, so that Optionee's
rights under this Option shall be maintained as before the occurrence of such
event to the maximum extent possible.
2.3 Option Terms
The Option granted under this Agreement shall be subject to
the following terms and conditions:
(a) Price. The exercise price for the Shares subject to the
Option shall be $11.00 per Share.
(b) Term. The Option shall expire on the fifth anniversary of
the Grant Date.
(c) Vesting. Except as provided in Section 3.1, the Option
shall vest and become exercisable on May 15, 1994.
(d) Exercise. To the extent that the Option has become
exercisable in accordance with this Agreement, it may be exercised in whole or
in part at any time prior to its expiration or termination, by providing written
notice of such exercise to the Secretary of the Company of the number of Shares
as to which the Option is being exercised, and enclosing payment for the Shares
with respect to which the Option is being exercised. Such payment shall be in
cash or by check, or if approved by the Committee, by the delivery of Shares
previously owned by the Optionee, duly endorsed for transfer to the Company,
with a Fair Market Value on the date of delivery equal to the aggregate purchase
price of the Shares with respect to which the Option is being exercised, or
pursuant to a "cashless exercise," or any combination of the foregoing approved
by the Committee, in its sole discretion. Partial exercise shall be for whole
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Shares only and shall not be for less than one thousand (1,000) Shares unless
the number of Shares purchased constitutes the total number of Shares then
remaining subject to the Option or the Committee permits such smaller exercise
in its sole discretion. Notation of any partial exercise shall be made by the
Company on Schedule I hereto.
2.4 Nontransferability
The Option shall not be transferable other than by will or the
applicable laws of descent and distribution, and no transfer so effected shall
be effective to bind the Company unless the Company has been furnished with
written notice thereof and such evidence as the Committee may deem reasonably
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the Option.
2.5 Conditions to Issuance of Stock Certificates
(a) The Shares 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 non-assessable. The stock certificates evidencing the Shares
shall bear legends restricting transferability in substantially the form
indicated below:
"These Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act") and may not be
resold, pledged or otherwise transferred unless they have been
registered under the Securities Act or unless an exemption
from registration is available.
The sale, pledge or other transfer of these Shares are further
subject to restrictions specified in the Lockup Agreement
dated as of February 15, 1994 among Xxxxxx Xxxx Incorporated,
First Albany
Corporation, and Xxxxxxx X. Xxxxxx."
(b) The Company shall not be required to issue or deliver any
certificate or certificates for Shares deliverable upon any exercise of the
Option prior to fulfillment of all of the following conditions:
(i) The completion of any registration or other qualification
of such Shares under any state or federal law or under rulings or
regulations of the Securities and Exchange Commission or of any other
governmental regulatory body, or the obtaining of approval or other
clearance from any state or federal governmental agency which the
Committee shall, in its sole discretion, deem necessary or advisable.
(ii) In the event that the Shares have not been registered
under the Securities Act of 1933, as amended, if the Committee shall,
in its sole discretion, deem it necessary
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or advisable, the execution by the Optionee of a written representation
and agreement, in a form satisfactory to the Committee, in which the
Optionee represents that the Shares acquired by him upon exercise are
being acquired for investment and not with a view to distribution
thereof.
2.6 Rights as Stockholder
The Optionee shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any Shares purchasable
upon the exercise of the Option unless and until certificates representing such
Shares shall have been issued by the Company.
3. CHANGE IN CONTROL PROVISIONS.
3.1 Impact of Event
In the event of a Change in Control, the following shall
apply:
(a) Any portion of the Option that had not yet become
exercisable and vested shall become fully vested and exercisable immediately.
(b) In the event of a Change in Control other than one
described in Section 8.2(e) of the Plan, if, within one year after the Change in
Control Date, (i) no Shares are listed on a national securities exchange or are
traded on an over-the-counter market or (ii) for a period of sixty (60)
consecutive trading days, the Fair Market Value of a Share on such an exchange
or market shall have declined by twenty percent (20%) or more from the Fair
Market Value of a Share on the Change in Control Date or the Change in Control
Price, whichever is higher, then for a period of sixty (60) days following the
event that gives rise to the obligation to pay under this clause (b), the
Company shall offer the Optionee the opportunity to be paid the value of the
outstanding Option, determined on the basis of the Change in Control Price. Such
amount shall be payable in a cash lump sum within thirty (30) days after the
Company receives notification of the Optionee's election to accept the offer
described in this clause (b).
3.2 Designated Beneficiary
If the Optionee dies prior to receiving any payment due under
Section 3.1(b) of this Agreement, such payment shall be made to his beneficiary
(as designated in the form and manner determined by the Committee) or, if no
designation is in effect, to the Optionee's estate.
4. MISCELLANEOUS.
4.1 Administration
The Committee shall have the power to interpret the Plan and
this Agreement, and to adopt such rules for the administration, interpretation
and application of the Plan as are
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consistent therewith and to interpret or revoke any such rules. All actions
taken and all interpretations and determinations made by the Committee shall be
final and binding upon the Optionee, the Company and all other interested
persons.
4.2 Entire Agreement; Amendment
This Agreement together with the Plan constitutes the entire
agreement between the parties with respect to the subject matter hereof. Any
term or provision of this Agreement may be waived at any time by the party which
is entitled to the benefits thereof, and any term or provision of this Agreement
may be amended or supplemented at any time by the mutual consent of the parties
hereto, except that any waiver of any term or condition, or any amendment, of
this Agreement must be in writing.
4.3 Governing Law
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
4.4 Successors
This Agreement shall be binding upon and inure to the benefit
of the successors, assigns and heirs of the respective parties.
4.5 Notices
All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
To the Optionee:
c/o Apollo Partners Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To the Company:
International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
4.6 Waiver
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The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
4.7 Titles; Construction
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Agreement. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, when the context so indicates.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
INTERNATIONAL POST LIMITED (FORMERLY,
INTERNATIONAL POST GROUP INC.)
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President and
Chief Executive Officer
By:
Name:
Title:
OPTIONEE
/S/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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SCHEDULE I
Notations As to Partial Exercise
Number of Balance of
Purchased Shares on Authorized Notation
Date of Exercise Shares Option Signature Date
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