EXHIBIT 10.11
STOCK OPTION AGREEMENT
OF
NEW VISUAL CORPORATION
STOCK OPTION AGREEMENT (this "Agreement") entered into effective as
March 22, 2002, between NEW VISUAL CORPORATION, a Utah corporation (the
"Corporation"), and XXXXXX X. XXXXXX (the "Optionee," which term as used herein
shall be deemed to include any successor to the Optionee by will or by the laws
of descent and distribution, unless the context shall otherwise require).
The Board of Directors of the Corporation approved the issuance to the
Optionee, effective as of the date set forth above, of a nonqualified stock
option to purchase up to an aggregate of 1,500,000 shares of the common stock,
par value $.001 per share, of the Corporation (the "Common Stock"), at an
exercise price of $1.02 per share (the "Option Price"), upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as follows:
1. OPTION; OPTION PRICE. The Board of Directors hereby grants as of the
date of this Agreement to the Optionee the option (the "Option") to purchase,
subject to the terms and conditions of this Agreement, 1,500,000 shares of the
Common Stock of the Corporation at an exercise price per share equal to the
Option Price.
2. TERM. The term (the "Option Term") of the Option shall commence on
the date of this Agreement and shall terminate on March 22, 2012, unless such
Option shall theretofore have been terminated in accordance with the terms
hereof.
3. VESTING.
(a) Subject to the provisions of Sections 3(b) and (c), 4, 5 and 8
hereof, on each "Measurement Date" set forth in Column 1 below, the Option shall
vest and become exercisable for the corresponding number of shares of Common
Stock set forth in Column 2 below if the Optionee's employment or engagement
with the Company and/or any of its subsidiaries has not terminated. The "Vested
Portion" of the Option as of any particular date shall be the cumulative total
of all shares for which the Option has become exercisable as of that date.
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COLUMN 1 COLUMN 2
Measurement Date Vested Portion of the Option
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June 1, 2002 125,000
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September 1, 2002 125,000
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December 1, 2002 125,000
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March 1, 2003 125,000
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June 1, 2003 125,000
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September 1, 2003 125, 000
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December 1, 2003 125,000
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COLUMN 1 COLUMN 2
Measurement Date Vested Portion of the Option
------------------------------------- ----------------------------------
March 1, 2004 125,000
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June 1, 2004 125,000
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September 1, 2004 125,000
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December 1, 2004 125,000
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March 1, 2005 125,000
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(b) Notwithstanding the foregoing, in the event (i) Optionee's
employment is terminated by the Company without Cause or by Optionee with Good
Reason (as such terms are defined in that certain Employment Agreement, dated
March 22, 2002, between Optionee and the Company), or (ii) in the event of a
Change in Control (as such term is defined in the Company's 2000 Omnibus
Securities Plan), immediately prior to such Change in Control, the Option shall
become fully vested (if not already vested). In addition, upon a Change in
Control, the securities subject to this Option shall be automatically converted
into the right to receive, and thereafter shall constitute, in accordance with
this Agreement, the securities, cash and/or other consideration that a holder of
the Company's securities shall be entitled to receive upon the consummation of
the Change of Control.
(c) Subject to the provisions of Sections 5 and 8 hereof, the
shares as to which the Option is exercisable may be purchased at any time prior
to the expiration or termination of the Option.
4. TERMINATION OF OPTION. The unexercised portion of the Option shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(a) one (1) year after the date that Optionee ceases to be the
Company's Chief Executive Officer or member of the Board of Directors of the
Company regardless of the reason therefor; or
(b) the expiration date of the term of the Option.
5. PROCEDURE FOR EXERCISE.
(a) Subject to the requirements of Section 8, the Option may
be exercised, from time to time, in whole or in part (but for the purchase of a
whole number of shares only), by delivery of a written notice (the "Notice")
from the Optionee to the Secretary of the Corporation, which Notice shall:
(i) state that the Optionee elects to exercise the
Option;
(ii) state the number of shares with respect to which
the Option is being exercised (the "Optioned Shares");
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(iii) state the date upon which the Optionee desires
to consummate the purchase of the Optioned Shares (which date must be
prior to the termination of such Option and no later than thirty (30) days after
the date of receipt of such Notice);
(iv) include any representations of the Optionee
required under Section 8(c); and
(v) if the Option shall be exercised pursuant to
Section 10 by any person other than the Optionee, include evidence to the
satisfaction of the Board of Directors of the right of such person to exercise
the Option.
(b) Payment of the Option Price for the Optioned Shares may be
made (i) in U.S. dollars by personal or company check, bank draft or money order
payable to the order of the Corporation or by wire transfer or (ii) by delivery
of such other consideration as the Board of Directors may deem acceptable.
(c) The Corporation shall issue a stock certificate in the
name of the Optionee (or such other person exercising the Option in accordance
with the provisions of Section 10) for the Optioned Shares as soon as
practicable after receipt of the Notice and payment of the aggregate Option
Price for such shares.
6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall have no rights as a
stockholder of the Corporation with respect to any Optioned Shares until the
date the Optionee or, if Optionee is a natural person, his nominee (which, for
purposes of this Agreement, shall include any third party agent selected by the
Board of Directors to hold such Optioned Shares on behalf of the Optionee),
guardian or legal representative is the holder of record of such Optioned
Shares.
7. ADJUSTMENTS.
(a) If at any time while the Option is outstanding, there
shall be any increase or decrease in the number of issued and outstanding shares
of Common Stock through the declaration of a stock dividend, stock split,
combination of shares or through any recapitalization resulting in a stock
split-up, spin-off, combination or exchange of shares of Common Stock, then and
in each such event appropriate adjustment shall be made in the number of shares
and the exercise price per share covered by the Option, so that the same
proportion of the Corporation's issued and outstanding shares of Common Stock
shall remain subject to purchase at the same aggregate exercise price.
(b) Except as otherwise expressly provided herein, the
issuance by the Corporation of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a direct sale or upon the exercise of rights (issued for
adequate consideration) or warrants (issued for adequate consideration) to
subscribe therefor, or upon conversion of shares or obligations (issued for
adequate consideration) of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of or exercise price of shares of Common Stock
covered by the Option.
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(c) Without limiting the generality of the foregoing, the
existence of the Option shall not affect in any manner the right or power of the
Corporation to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Corporation's capital
structure or its business; (ii) any merger or consolidation of the Corporation;
(iii) any issue by the Corporation of debt securities, or preferred or
preference stock that would rank above the shares of Common Stock covered by the
Option; (iv) the dissolution or liquidation of the Corporation; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Corporation; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
(d) If the Corporation shall consummate any merger,
consolidation, business combination or other reorganization in which holders of
shares of Common Stock are entitled to receive in respect of such shares any
securities, cash and/or other consideration (including a different number of
shares of Common Stock) (collectively, a "Reorganization"), this Option shall
thereafter be exercisable, in accordance with this Agreement, only for the kind
and amount of securities, cash and/or other consideration receivable upon such
Reorganization by a holder of the same number of shares of Common Stock as are
subject to this Option immediately prior to such Reorganization, and any
adjustments will be made to the terms of this Option, and this Agreement, to
give effect to the Reorganization.
8. ADDITIONAL PROVISIONS RELATED TO EXERCISE.
(a) The Option shall be exercisable only in accordance with
this Agreement, including the provisions regarding the period when the Option
may be exercised and the number of shares of Common Stock that may be acquired
upon exercise.
(b) The Option may not be exercised as to less than one
hundred (100) shares of Common Stock at any one time unless less than one
hundred (100) shares of Common Stock remain to be purchased upon the exercise of
the Option.
(c) To exercise the Option, the Optionee shall follow the
provisions of Section 5 hereof. Upon the exercise of the Option at a time when
there is not in effect a registration statement under the Securities Act of
1933, as amended (the "Securities Act") relating to the shares of Common Stock
issuable upon exercise of the Option, the Board of Directors in its discretion
may, as a condition to the exercise of the Option, require the Optionee (i) to
represent in writing that the shares of Common Stock received upon exercise of
the Option are being acquired for investment and not with a view to distribution
and (ii) to make such other representations and warranties as are deemed
appropriate by counsel to the Corporation or any underwriters or prospective
underwriters (including lock-up options). No Option may be exercised and no
shares of Common Stock shall be issued and delivered upon the exercise of the
Option unless and until the Corporation and/or the Optionee shall have complied
with all applicable federal or state registration, listing and/or qualification
requirements and all other requirements of law or of any regulatory agencies
having jurisdiction.
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(d) Stock certificates representing shares of Common Stock
acquired upon the exercise of the Option that have not been registered under the
Securities Act shall, if required by the Board of Directors, bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED."
(e) The exercise of each Option and the issuance of shares in
connection with the exercise of an Option shall, in all cases, be subject to the
satisfaction of withholding tax.
9. RESTRICTION ON TRANSFER. The Option may not be assigned or
transferred (which shall be deemed to include with respect to an Optionee that
is an entity, a reorganization or merger or consolidation with any other person,
entity or corporation) except, if Optionee is a natural person, by will or by
the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code, and may be exercised during the lifetime
or existence of the Optionee, as applicable, only by the Optionee or, if
Optionee is a natural person, the Optionee's guardian or legal representative or
assignee pursuant to a qualified domestic relations order. If the Optionee (who
is a natural person) dies, the Option shall thereafter be exercisable, during
the period specified in Section 4(a), by his executors or administrators or by a
person who acquired the right to exercise the Option by bequest or inheritance
to the full extent to which the Option was exercisable by the Optionee at the
time of his death. The Option shall not be subject to execution, attachment or
similar process. Any attempted assignment or transfer of the Option contrary to
the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without effect.
10. NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally-recognized overnight courier or (iii) sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Optionee, to the address set forth on the signature
page hereto; and
if to the Corporation, to:
New Visual Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Secretary
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or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, (ii) on the first Business Day (as hereinafter defined)
after dispatch, if sent by nationally-recognized overnight courier and (iii) on
the third Business Day following the date on which the piece of mail containing
such communication is posted, if sent by mail. As used herein, "Business Day"
means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.
11. NO WAIVER. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
12. OPTIONEE UNDERTAKING. The Optionee hereby agrees to take whatever
additional actions and execute whatever additional documents the Corporation or
its counsel may in their reasonable judgment deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions
imposed on the Optionee pursuant to the express provisions of this Agreement.
13. MODIFICATION OF RIGHTS. The rights of the Optionee are subject to
modification and termination in certain events as provided in this Agreement.
14. AMENDMENTS. The Board of Directors may, insofar as permitted by
applicable law, rule or regulation, from time to time suspend or discontinue
this Agreement or revise or amend it in any respect whatsoever, and this
Agreement as so revised or amended will govern the Option hereunder; PROVIDED,
HOWEVER, that no such revision or amendment shall alter, impair or diminish any
rights or obligations under the Option without the written consent of the
Optionee.
15. ARBITRATION. Any disputes between the parties to this Agreement
relating to the formation, execution, interpretation, breach or enforcement of
this Agreement, or relating to any other matter arising from the transactions
contemplated herein, shall be submitted to arbitration before the American
Arbitration Association ("AAA"), in accordance with their rules then in effect
and the substantive law of the State of Utah and the United States. The
arbitration shall be held in San Diego, California. Each of the parties to this
Agreement shall appoint one person as an arbitrator to hear and determine such
disputes, and if they should be unable to agree, then the two arbitrators shall
choose a third arbitrator from a panel made up of experienced arbitrators
selected pursuant to the procedures of the AAA and, once chosen, the third
arbitrator's decision shall be final, binding and conclusive upon the parties to
this Agreement. The arbitrators may not award punitive or exemplary damages for
contract claims but will have the power to award pre-judgment interest and
attorneys' fees to the prevailing party. The award of the arbitration panel may
be confirmed by any state or federal court of competent jurisdiction located in
San Diego, California, and may be challenged only upon the grounds provided in
Section 10 of the Federal Arbitration Act, Title 9, United States Code. This
agreement to arbitrate shall survive the execution of this Agreement. THE RIGHT
TO ARBITRATE IS INTEGRAL TO AND NOT SEVERABLE FROM THIS AGREEMENT. THE PARTIES
ACKNOWLEDGE THAT THEY HAVE READ THIS ARBITRATION AGREEMENT AND KNOWINGLY CONSENT
TO ITS CONSEQUENCES, INCLUDING THE WAIVER OF THE RIGHT TO LITIGATE CERTAIN
DISPUTES. The expenses of such arbitration will be borne by the losing party or
in such proportion as the arbitrators decide. A material or anticipatory breach
of any section of this Agreement will not release either party from the
obligations of this Section 15.
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16. INFORMATION TO OPTIONEE.
(a) The Board of Directors in its sole discretion shall
determine what, if any, financial and other information shall be provided to
Optionee and when such financial and other information shall be provided after
giving consideration to applicable federal and state laws, rules and
regulations, including without limitation applicable federal and state
securities laws, rules and regulations.
(b) Optionee hereby agrees that any financial and other
information provided to Optionee by the Corporation is confidential and Optionee
shall maintain the confidentiality of such financial and other information,
shall not disclose such information to third parties, and shall not use the
information for any purpose other than evaluating an investment in the Common
Stock. Optionee expressly acknowledges that the number of shares exercisable
under options granted hereunder, and the terms thereof, shall be confidential.
The Board of Directors may impose other restrictions on the access to and use of
such confidential information and may require Optionee to further acknowledge
the Optionee's obligations under this Section (which acknowledgment shall not be
a condition to the Optionee's obligations under this Section 16).
17. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Utah applicable to contracts made
and to be wholly performed therein.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
19. ENTIRE AGREEMENT. This Agreement constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NEW VISUAL CORPORATION
By: /S/ XXX XXXXXXXXXX, XX.
-----------------------
Name: Xxx Xxxxxxxxxx, Xx.
Title: CEO
OPTIONEE:
/S/ XXXXXX X. XXXXXX
--------------------
Xxxxxx X. Xxxxxx
Address: 00000 Xxxxxxxx Xxxxx #0
Xxxxxxxxx, XX 00000
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NOTICE OF EXERCISE
UNDER
STOCK OPTION AGREEMENT
----------------------
To: New Visual Corporation (the "Corporation")
From:
-----------------------------------
Date:
-----------------------------------
Pursuant to the Stock Option Agreement (the "Agreement") between the
Corporation and the undersigned effective March 22, 2002, the undersigned hereby
exercises the Option as follows:
--------------------------------------------------------------------------------
Number of shares of Common Stock the undersigned wishes to
purchase under the Option
--------------------------------------------------------------------------------
Exercise Price per share $1.02
--------------------------------------------------------------------------------
Total Exercise Price $
--------------------------------------------------------------------------------
Vested shares (pursuant to Section 3 of the Agreement))
--------------------------------------------------------------------------------
Number of shares the undersigned has previously purchased by
exercising the Option
--------------------------------------------------------------------------------
Expiration Date of the Option March 22, 2012
--------------------------------------------------------------------------------
The undersigned hereby represents, warrants, and covenants to the
Corporation that:
a. The undersigned is acquiring the Common Stock for its own account,
for investment, and not for distribution or resale, and will make no transfer of
such Common Stock except in compliance with applicable federal and state
securities laws and in accordance with the provisions of the Agreement.
b. The undersigned can bear the economic risk of the investment in the
Common Stock resulting from this exercise of the Option, including a total loss
of its investment.
c. The undersigned is experienced in business and financial matters and
am capable of (i) evaluating the merits and risks of an investment in the Common
Stock; (ii) making an informed investment decision regarding exercise of the
Option; and (iii) protecting my interests in connection therewith.
d. The undersigned has had a reasonable opportunity to conduct such
investigation as it deemed necessary for the purpose of making the decision to
invest in the Common Stock. The undersigned has had a reasonable opportunity to
ask questions of and receive answers from the Corporation concerning the
operations, affairs and financial condition of the Corporation.
The undersigned acknowledges that it must pay the exercise price in
full and make appropriate arrangements for the payment of all federal, state and
local tax withholdings due with respect to the Option exercised herein, before
the stock certificate evidencing the shares of Common Stock resulting from this
exercise of the Option will be issued to the undersigned.
Attached in full payment of the exercise price for the Option exercised
herein is a check made payable to the Corporation in the amount of
$------------.
_____________________________________
