Exhibit 10.53
NON-INCENTIVE STOCK OPTION AGREEMENT
(Plan Option)
THIS NON-INCENTIVE STOCK OPTION AGREEMENT ("Agreement") is dated as of
January 28, 1998 and is by and between NATIONAL MEDIA CORPORATION, a Delaware
corporation with its principal office located at Eleven Penn Center, Suite 1100,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Company"), and Xxxx
X. Xxxxx.
The Compensation Committee of the Board of Directors of the Company
(the "Committee") has determined to grant to the Optionee an option to purchase
shares of the Company's Common Stock in order to provide the Optionee with an
added incentive to contribute to the Company's future success and prosperity.
The option granted herein shall be issued under the Company's Amended and
Restated Stock Option Plan, as it may be amended from time to time hereafter
(the "Plan"). Capitalized terms contained herein and not otherwise defined shall
have the meanings ascribed to such terms in the Plan.
Accordingly, in consideration of the premises set forth herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the Company hereby grants the Optionee the option to acquire shares of the
common stock of the Company upon the following terms and conditions:
1. Grant of Option.
(a) The Company hereby grants to the Optionee the right and
option (the "Option") to purchase up to Three Hundred Thousand (300,000) fully
paid and non-assessable shares of common stock, par value $.01 per share, of the
Company (the "Shares"), to be issued upon the exercise hereof.
(b) The Option may be exercised during the period ("Option
Period") commencing on the date hereof and, unless sooner terminated as provided
herein, expiring and terminating at 5:00 p.m. Eastern Standard Time on January
28, 2008, at which time the Optionee shall have no further right to purchase any
Shares not then purchased the Option may be exercised in whole or in part from
time to time during the Option period. The Company shall at all times during the
term of this Agreement reserve and keep available such number of Shares as will
be sufficient to satisfy the requirements of this Agreement.
(c) It is not intended that the Option qualify as an Incentive
Stock Option within the meaning of Section 422A of the Internal Revenue Code of
1986, as amended (the "Code").
2. Exercise Price. The exercise price of the Option (the "Exercise
Price") shall be $2.6875. The exercise price shall be payable by certified or
bank check payable to the order of the Company in full at the time of the
exercise in cash or, with the consent of the Committee in its sole discretion,
by delivering (i) shares of Common Stock already owned by the Optionee and
having a fair market value (as determined under the Plan) on the date of
exercise equal to the Exercise Price, or (ii) a combination of cash and shares
of Common Stock with a fair market value equal to the Exercise Price.
3. Exercise of Option. The Optionee may exercise this Option to
purchase Shares by providing notice to the Company by registered or certified
mail, return receipt requested, addressed to its principal office, or by hand
delivery, signed by the Optionee, indicating the number of whole Shares which
Optionee desire to purchase under the Option. The notice shall be accompanied by
payment of the Exercise Price therefor as specified in Paragraph 2 above, any
amounts payable pursuant to Paragraph 10 below and any required written
representation as specified pursuant to Paragraph 7 below. As soon as
practicable after the receipt of such notice of exercise, payments and written
representation, the Company shall issue to the Optionee a certificate(s) issued
in the Optionee's name evidencing the Shares purchased by the Optionee
hereunder, subject to the Company's right to require that Optionee hereunder,
subject to the Company's right to require that Optionee execute such other
documents as it deems reasonably necessary.
4. Limitations on Right to Exercise. Should the Optionee cease to be an
Eligible Participant for any reason other than the Optionee's death or
disability, the Option (to the extent then vested) shall be exercisable for a
period of ninety (90) days after the Optionee ceases to be an Eligible
Participant or until the expiration of the Option Period, whichever shall occur
first.
5. Death or Disability of Optionee. In the event of the death or
disability of the Optionee while the Optionee is an Eligible Participant (or the
death of the Optionee within ninety (90) days after the date on which the
Optionee ceases to be an Eligible Participant), any unexercised portion of the
Option shall be exercisable for a period of one year after the Optionee's death
or disability or upon the expiration of the Option Period, whichever shall occur
first, and, in the event of the death of the Optionee, shall be exercisable only
by the Optionee's personal representative or such person or persons to whom the
Optionee's rights pass under the Optionee's will or by the Laws of descent and
distribution.
6. Non-Transferability of Option. Except as provided in Paragraph 5
herein, the Option shall be exercisable only by the Optionee. The Optionee may
not give, grant, sell, exchange, transfer legal title, pledge, assign or
otherwise encumber or dispose of the Option herein granted or any interest
therein, otherwise than by will or the laws of descent and distribution or, if
permitted under Rule 16b-3 promulgated under the Securities Exchange Act of 1934
and by the Committee in its sole discretion pursuant to a qualified domestic
relations order as defined in the Code or Title 1 of ERISA or the rules
promulgated thereunder. Upon any attempt to so transfer the Option, or upon the
levy or attachment or similar process of the Option, the Option shall
automatically become null and void.
7. Restriction on Issuance; Investment Representation. The Optionee
agrees for himself, his heirs and legatees that, unless at the time of exercise
there exists an effective registration statement under the Securities Act of
1933 concerning the Shares issuable pursuant to the Option providing for the
issuance of such Shares to the Optionee and/or the subsequent transfer of the
shares by Optionee, any and all Shares purchased upon the exercise of the Option
shall be acquired for investment and not for distribution. Upon the issuance of
any or all of the Shares subject to the Option, the Company, in its discretion
and in accordance with the foregoing, may require the Optionee, or his heirs or
legatees receiving such Shares, to deliver to the Company a representation in
writing, in a form satisfactory to the Board, that such Shares are being
acquired in good faith for investment and not for distribution. In accordance
with the foregoing, (i) the Company may place with its transfer agent a "stop
transfer" order with respect to such Shares and may place an appropriate
restrictive legend on the certificate(s) evidencing such Shares; and (ii) any
stock certificates issued upon the exercise of the Option may bear an
appropriate restrictive legend, if deemed necessary by the Company.
8. No Rights as Shareholder. The Optionee shall have no rights as a
shareholder of the Company in respect of the Shares as to which the Option shall
not have been exercised and payment made as herein provided.
9. No Obligation Relating to Engagement of Optionee. Nothing herein
shall obligate the Company or any of its subsidiaries to engage the Optionee,
nor shall this Agreement constitute an agreement of employment or for services,
nor confer upon the Optionee any right to continue to render services to the
Company or any of its subsidiaries or interfere in any way with the right of the
Company or any of its subsidiaries to terminate the services of the Optionee at
any time without liability to the Company or the subsidiary.
10. Taxes. The Company may make such provisions as it may deem
appropriate for the withholding of any taxes which it determines is required in
connection with any options granted under the Plan. The Company may further
require notification from the Optionee upon any disposition of Shares acquired
pursuant to the exercise of the Option.
11. Conflict between Option Agreement and Plan. In the event of any
conflicts between this Agreement and the terms and condition of the Plan, the
terms and conditions of the Plan shall control.
12. Binding Effect. Except as herein otherwise expressly provided, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their legal representatives and assigns.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed wholly within the State of Delaware.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
NATIONAL MEDIA CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Chairman of the Board
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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