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EXHIBIT 99.2
THE STOCK OPTION EVIDENCED BY THIS STOCK OPTION AGREEMENT, AND ANY SHARES
ACQUIRED UPON THE EXERCISE THEREOF, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE,
IN RELIANCE ON CERTAIN EXEMPTIONS PROVIDED THEREUNDER.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into as
of _____________, 1998 (the "Execution Date"), by and between XXXXXXX CENTRAL
HOLDINGS, INC., a Delaware corporation (the "Corporation"), and _____________
(the "Optionee").
WITNESSETH:
WHEREAS, as of the original date of grant of the Option (as defined
herein), the Optionee was an employee or director of the Corporation or one of
its subsidiaries;
WHEREAS, the Option was granted on the date set forth opposite the name
of the Optionee in Schedule I of this Agreement (the "Effective Date"), but such
grant was not previously evidenced by any formal executed written agreement; and
WHEREAS, the Corporation and the Optionee desire to reflect the terms
of the Option in this Agreement (it being agreed that the provisions of this
Agreement are not intended to constitute a modification of any material economic
terms of such Option).
In consideration of the premises and the mutual agreements and covenants
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement, the Corporation hereby grants, effective as of the Effective Date, to
the Optionee, the right and option (the "Option") to purchase that number of
shares of the Corporation's $.001 par value common stock (the "Common Stock")
set forth in Schedule I to this Agreement (the "Option Shares").
2. EXERCISE PRICE. The purchase price (the "Exercise Price") for each
Option Share shall be the price per share set forth in Schedule I to this
Agreement, subject to adjustment from time to time as hereinafter provided.
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3. EXERCISE OF OPTION.
(a) To the extent that the Option has become and remains
exercisable it may be exercised by the Optionee delivering to the Corporation a
written notice of exercise signed by the Optionee, in substantially the form
attached hereto as Exhibit A (a "Notice of Exercise"), together with a check
payable to the Corporation in the amount of the total Exercise Price for the
Option Shares to be purchased pursuant to the Notice of Exercise.
(b) The Optionee may exercise the Option for less than the full
number of Option Shares with respect to which the Option is exercisable (the
"Available Option Shares"), but no fractional shares of Common Stock shall be
issued. Subject to the other restrictions on exercise set forth herein, the
unexercised portion of the exercisable Option may be exercised at a later date
by the Optionee.
(c) Within thirty (30) days after the exercise of the Option as
herein provided, the Corporation shall deliver to the Optionee a certificate or
certificates for the total Option Shares being purchased, in such names and
denominations as are requested by the Optionee.
(d) Neither the Option nor the Option Shares have been
registered under the Securities Act of 1933, as amended (the "Act"), or under
the securities laws of any state. Unless the issuance of shares of Common Stock
are covered by an effective registration statement at the time the Option is
exercised, each certificate representing Option Shares issued upon the exercise
of the Option shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT
OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE
WITH REGARD THERETO, OR (ii) THE CORPORATION HAS RECEIVED AN OPINION OF
COUNSEL ACCEPTABLE TO THE CORPORATION THAT REGISTRATION UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED SALE, PLEDGE OR TRANSFER.
The Optionee and the Corporation agree to execute such documents and instruments
as counsel for the Corporation reasonably deems necessary to ensure that the
granting of the Option and the issuance of any shares upon the exercise thereof
will be in compliance with applicable federal and state securities laws.
(e) The Corporation covenants and agrees that all Option Shares
which may be issued upon exercise of the Option shall, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, and free from all liens, claims and encumbrances, except
restrictions imposed by applicable securities laws, the Corporation's
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Articles of Incorporation and/or this Agreement. The Corporation shall at all
times reserve and keep available for issuance upon the exercise of the Option
such number of authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of the Option.
4. TERM OF OPTION.
(a) The term of the Option shall commence on the Effective Date
set forth in Schedule I to this Agreement, and shall continue in effect until
the first to occur of the following:
(i) the date on which the Option has been fully exercised
with respect to all of the Option Shares, or
(ii) (ii) the date specified as the expiration date of the
Option in Schedule I hereto (the "Expiration Date").
(b) In the event of the Optionee's death, the vested
Option may be exercised hereunder by the Optionee's personal representative,
legatees or heirs at law, as the case may be, and in the case of the Optionee's
mental incompetence, by his legal guardian, or if none has been appointed, by
his duly authorized attorney-in-fact.
5. NONTRANSFERABILITY. This Agreement, the Option and all rights
hereunder are nontransferable and nonassignable by the Optionee, other than by
the last will and testament of the Optionee or the laws of descent and
distribution, unless the Corporation consents thereto in writing. Any transfer
or attempted transfer except pursuant to the preceding sentence shall be null
and void and of no effect whatsoever.
6. ADJUSTMENTS.
(a) If, prior to the termination of the Option as provided in
Section 4(a) hereof, the number of outstanding shares of Common Stock is
increased by a stock split, stock dividend, or other similar event, the Exercise
Price in effect immediately prior to such event shall be proportionately
reduced, and conversely, if the number of outstanding shares of Common Stock is
decreased by a combination or reclassification of shares, or other similar
event, the Exercise Price in effect immediately prior to such event shall be
proportionately increased. Upon each adjustment of the Exercise Price, the
Optionee shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment, and rounding down to the nearest whole share.
(b) If, prior to the termination of the Option as provided in
Section 4(a) hereof, the Corporation shall effect a merger, consolidation,
exchange of shares, recapitalization,
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reorganization or other similar event, or shall sell, transfer or otherwise
dispose of all or substantially all of its property, assets or business, and,
pursuant to the terms of such merger, consolidation, exchange of shares,
recapitalization, reorganization, or disposition of assets, property or
business, shares of Common Stock shall be changed into the same or a different
number of shares of the same or another class or classes of stock or securities
of the Corporation, successor or transferee or an affiliate thereof or cash or
other property or assets, then the Optionee shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions specified
in this Agreement and in lieu of the Option Shares immediately theretofore
purchasable and receivable upon the exercise of the Option, such shares of stock
and/or securities, property or cash as may be issued or payable with respect to
or in exchange for the number of Option Shares immediately theretofore
purchasable and receivable upon the exercise of the Option had such merger,
consolidation, exchange of shares, recapitalization or reorganization not taken
place, and, in any such case, appropriate provisions shall be made with respect
to the rights and interests of the Optionee to the end that the provisions
hereof (including, without limitation, provisions for adjustment of the Exercise
Price and of the number of shares purchasable upon the exercise of the Option)
shall thereafter be applicable, as nearly as may be practicable in relation to
any shares of stock or securities, property or cash thereafter deliverable upon
the exercise hereof. The provisions of this paragraph shall similarly apply to
successive reorganizations, mergers, consolidations or dispositions of assets.
Upon any reorganization, consolidation. merger or transfer hereinabove referred
to, this Agreement and the Option shall continue in full force and effect and
the terms hereof shall be applicable to the shares of stock and other
securities, property, assets and cash receivable upon the exercise of the Option
after the consummation of such merger, consolidation, exchange of shares,
recapitalization, reorganization or transfer, as the case may be. The
Corporation shall not effect any such merger, consolidation, exchange of shares,
recapitalization, reorganization or transfer unless, prior to the consummation
thereof, the successor corporation (if other than the Corporation) resulting
therefrom or the corporation purchasing such assets shall, by written instrument
executed and mailed to the registered holder hereof at the last address of such
holder appearing on the books of the Company, (i) assume the obligation to
deliver to such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
purchase, and (ii) agree to be bound by all the terms of this Agreement.
7. INVESTMENT REPRESENTATION. Unless the issuance of shares of Common
Stock are covered by an effective registration statement at the time the Option
is exercised, as a condition to the issuance of Option Shares hereunder, the
Optionee shall represent to the Corporation that the Option Shares acquired
pursuant to such exercise are being purchased for his or her own account for
investment purposes only and not with a present view to resale or a distribution
thereof, unless the Corporation receives an opinion of counsel acceptable to the
Corporation that such a representation is not required under the Act or any
state securities laws. The Optionee acknowledges that he or she has no right to
require the Corporation or any other person or entity to (a) register under the
Act or any state securities law any shares of Common Stock issued upon exercise
of the Option, or (b) satisfy the conditions of Rule 144 of the Securities and
Exchange Commission or any other rule or provision with respect to the public
sale of such Common Stock.
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8. NO EMPLOYMENT RIGHT. Neither this Agreement nor the Option shall
give rise to any entitlement to the Optionee to continue to be employed or to
serve as a director or be compensated for any services by the Corporation or any
of its subsidiaries.
9. NO RIGHTS AS A SHAREHOLDER. The Optionee shall not have any interest
in or shareholder rights with respect to any shares of Common Stock (or other
securities) which are or may become subject to the Option until such shares (or
other securities) have been issued and delivered to the Optionee in accordance
with this Agreement.
10. TAXES. As a condition to the issuance of Option Shares hereunder,
the Corporation may withhold, or require the Optionee to pay or reimburse the
Corporation for, any taxes which the Corporation determines are required to be
withheld under federal, state or local law in connection with the exercise of
the Option
11. HEIRS AND SUCCESSORS. This Agreement and all terms and conditions
hereof shall be binding upon the Corporation and its successors and assigns, and
upon the Optionee and is heirs, legatees and legal representatives.
12. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Georgia.
13. NOTICES. All notices, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered in person, when delivered by overnight
delivery service, or three (3) business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested, to the following
addresses (or to such other address as one party may from time to time designate
in writing to the other party hereto):
If to the Corporation: Xxxxxxx Central Holdings, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
If to the Optionee: At such address as is
indicated in the Corporation's records or at
such other address as may be communicated by
the Optionee in writing to the Corporation
14. SEVERABILITY. The provisions of this Agreement, and of each
separate section and subsection, are severable, and if any one or more
provisions may be determined to be illegal or otherwise enforceable, in whole or
in part, the remaining provisions, and any unenforceable provisions to the
extent enforceable, shall nevertheless be binding and enforceable.
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IN WITNESS WHEREOF, the Corporation executed this Agreement as of the date
first set forth above.
XXXXXXX CENTRAL HOLDINGS, INC.
By:
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Chief Executive Officer
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EXHIBIT A
[DATE]
Xxxxxxx Central Holdings, Inc.
Attention: President
Re: Exercise of Stock Option
Dear Sir:
The undersigned, __________________, pursuant to that certain Stock Option
Agreement dated as of ____________________199_, by and between Xxxxxxx Central
Holdings, Inc. and the undersigned (the "Agreement"), hereby exercises the
Option granted under the Agreement for the following number of Option Shares,
subject to the terms and conditions of the Agreement:
Number of Option Shares Being Purchased:
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Total Purchase Price and Amount Remitted:
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Very truly yours,
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[Name]
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SCHEDULE I
NAME DATE OF GRANT EXPIRES SHARES EXERCISE PRICE CERT. NUMBER
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SCHEDULE TO EXHIBIT 99.2
Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxxx
