EXHIBIT 4.4
BAM! ENTERTAINMENT, INC.
2003 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
STOCK OPTION AGREEMENT
(SUPER EXECUTIVE)
NAME: ___________________
This AGREEMENT is made effective as of the ___day of ___________,
_______ (the "Option Grant Date"), by and between BAM! Entertainment, Inc., a
Delaware corporation (the "Company") and ________________ (the "Optionee").
RECITALS
WHEREAS, the Company has established the 2003 Stock Option, Deferred
Stock and Restricted Stock Plan (the "Plan") effective as of October 23, 2003,
and
WHEREAS, pursuant to the provisions of said Plan, the Administrator has
granted to the Participant (as defined in the Plan) by action duly taken on
________ __, 200_, (the "Award Date") a stock option award (the "Stock Option
Award") based upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of services rendered and to be
rendered by the Participant and the mutual promises and covenants made herein,
the mutual benefits to be derived therefrom and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
AGREEMENT
1. The Option(s). The Optionee may, at his/her option, purchase
all or any part of an aggregate of __________ shares of Common Stock (the
"Optioned Shares"), at the price of $_________ per share (the "Option Price"),
on the terms and conditions set forth herein.
2. Option Type; Exercise Dates and Exercise. Options intended to
qualify as Incentive Stock Options are designated by an "ISO" under the category
"Type." Options intended as separate Non-Qualified Stock Options are designated
by a "NQSO" under the category "Type." The Option(s) shall be exercisable as to
the specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
Type Number of Shares First and Last Date
Optionee acknowledges that he/she understands he/she has no right
whatsoever to exercise the Option(s) granted hereunder with respect to any
Optioned Shares covered by any installment until such installment accrues (and
is thus vested) as provided above. Optionee further understands that the
Option(s) granted hereunder shall expire and become unexercisable as provided in
Section 4(c) below.
In the event, within twelve (12) months after a Change in Control, the
Optionee's employment terminates other than (i) for Cause, (ii) voluntary
termination by the Optionee but such resignation is not a result of a
"Constructive Termination", or (iii) death or disability of the Optionee, fifty
percent (50%) of the unvested Optioned Shares shall vest upon the date of such
termination. For the purposes of this agreement, "Constructive Termination"
shall mean Employee's voluntary termination, upon 30 days prior written notice
to the Company, following: (A) a material reduction or change in job duties,
title, responsibilities and requirements inconsistent with Employee's position
with the Company and Employee's prior duties, responsibilities and requirements;
(B) any material reduction of Employee's base compensation (other than in
connection with a general decrease in base salaries for most employees of the
successor corporation); or (C) Employee's refusal to relocate to a facility or
location more than 75 miles from the Company's current location.
For the purposes of the foregoing, a "Change in Control" shall have the
meaning set forth in Section 9(b) of the Plan. For purposes of this Agreement,
"Cause" shall mean (i) a material act of dishonesty in connection with the
Optionee's responsibilities as an employee of the Company; (ii) the Optionee's
conviction of, or plea of nolo contendere to, a felony or a crime involving
moral turpitude, (iii) the Optionee's gross misconduct which has a material
adverse effect on the Company, or (iv) the Optionee's consistent and willful
failure to perform his or her employment duties where such failure is not cured
within 30 days after written notice to Participant by the Company.
3. Method of Exercise. This Option shall be deemed exercised as
to the shares to be purchased when written notice of such exercise has been
given to the Company at its principal business office by the Optionee with
respect to the Common Stock to be purchased. Such notice shall be accompanied by
full payment in cash or cash equivalents as determined by the Administrator. As
determined by the Administrator, in its sole discretion, payment in whole or
part may also be made (i) in the form of unrestricted Stock already owned by the
Optionee, or, in the case of the exercise of a Non-Qualified Stock Option,
Restricted Stock subject to an Award hereunder (based, in each case, on the Fair
Market Value of the Stock), (ii) by cancellation of any indebtedness owed by the
Company to the Optionee, (iii) by a full recourse promissory note executed by
the Optionee, (iv) by requesting that the Company withhold whole shares of
Common Stock then issuable upon exercise of the Stock Option (based on the Fair
Market Value of the Stock), (v) by arrangement with a broker which is acceptable
to the Administrator where
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payment of the option price is made pursuant to an irrevocable direction to the
broker to deliver all or part of the proceeds from the sale of the shares
underlying the option to the Company, or (vi) by any combination of the
foregoing; provided, however, that in the case of an Incentive Stock Option, the
right to make payment in the form of already owned shares may be authorized only
at the time of grant. Any payment in the form of Stock already owned by the
Optionee may be effected by use of an attestation form approved by the
Administrator. If payment of the option exercise price of a NQSO is made in
whole or in part in the form of Restricted Stock or Deferred Stock, the shares
received upon the exercise of such Option (to the extent of the number of shares
of Restricted Stock or Deferred Stock surrendered upon exercise of such Option)
shall be restricted in accordance with the original terms of the Restricted
Stock or Deferred Stock award in question, except that the Administrator may
direct that such restrictions shall apply only to that number of shares
surrendered upon the exercise of such Option.
4. Governing Plan. This Agreement hereby incorporates by
reference the Plan and all of the terms and conditions of the Plan as heretofore
amended and as the same may be amended from time to time hereafter in accordance
with the terms thereof, but no such subsequent amendment shall adversely affect
the Optionee's rights under this Agreement and the Plan except as may be
required by applicable law. The Optionee expressly acknowledges and agrees that
the provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he/she
is familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising
under the Plan.
(c) Acknowledges that he/she is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he/she understands
that said Option(s) must be exercised on or before the "Last" exercise date
noted above in Section 2 or such other date as set forth in the Plan, whichever
is earlier.
(d) Acknowledges, understands and agrees that the existence of the
Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422 of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
Optioned Share may be made by Optionee within two (2) years from the date of the
granting of the Option(s) nor within one (1) year after the transfer of such
Optioned Share to him/her, and
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(2) employment requirement: at all times during the
period beginning on the date of the granting of the Option(s) and ending on the
day three (3) months before the date of exercise, the Optionee must have been an
employee of the Company, its Parent, or a Subsidiary of the Company, or a
corporation or a parent or subsidiary of such corporation issuing or assuming
the Option(s) in a transaction to which Section 425(a) of the Internal Revenue
Code applies, except where the termination of employment is by means of the
employee's disability, in which case said three (3) month period may be extended
to one (1) year, as provided under Internal Revenue Code Section 422.
5. Representations and Warranties. Optionee hereby represents to
the Company that each of the Options evidenced hereby and the shares purchasable
upon exercise thereof are being acquired only for investment and without any
present intention to sell or distribute such securities.
6. Options Not Transferable. No Stock Option shall be
transferable by the Optionee other than by will or by the laws of descent and
distribution. Incentive Stock Options shall be exercisable, during the
Optionee's lifetime, only by the Optionee or, with respect to Non-Qualified
Stock Options, in accordance with the terms of a qualified domestic relations
order.
7. No Enlargement of Employee Rights. Nothing in this Agreement
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company or to restrict in any way the right of the
Company to terminate his/her employment. Optionee acknowledges that in the
absence of an express written employment agreement to the contrary, the Company
may terminate Optionee's employment with the Company at any time, with or
without cause.
8. Withholding of Taxes. Optionee authorizes the Company to
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
9. Laws Applicable to Construction. This Agreement shall be
construed and enforced in accordance with the laws of the State of Delaware.
10. Agreement Binding on Successors. The terms of this Agreement
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
11. Costs of Litigation. In any action at law or in equity to
enforce any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
12. Necessary Acts. The Optionee agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement,
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including but not limited to all acts and documents related to compliance with
federal and/or state securities laws.
13. Counterparts. For convenience this Agreement may be executed
in any number of identical counterparts, each of which shall be deemed a
complete original in itself and may be introduced in evidence or used for any
other purpose without the production of any other counterparts.
14. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
15. Limitation on Value of Optioned Shares. Optionee acknowledges
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
future Subsidiary shall not exceed $100,000. It is understood and agreed that
should it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This limitation shall not apply to any option granted as a Non-Qualified
Stock Option.
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IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
BAM! ENTERTAINMENT, INC. OPTIONEE
By:
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Name:
------------------------------
Title:
------------------------------
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(Print Name)
Address of Optionee:
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------------------------------------------- (Social Security)
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By his or her signature below, the spouse of the Optionee, if such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
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Spouse
Dated:
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By his or her signature below the Optionee represents that he or she is
not legally married as of the date of execution of this Agreement.
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Optionee
Dated:
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