Exhibit 4.4
[GENIUS PRODUCTS, INC. LETTERHEAD]
March 1, 2003
VIA FACSIMILE
Xxxxx XxXxxxxx Associates, Inc.
000 Xx. Xxxxxxxxx Xxxxx
Xx Xxxxxx, XX 00000
Re: Letter of Amendment to Consulting Agreement
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Dear Xxxxx:
This letter will serve to document the amendment of the terms of the Consulting
Agreement ("Agreement") between Genius Products, Inc. ("Genius"), and Xxxxx
XxXxxxxx Associates, Inc. ("Consultant") dated January 3, 2002, as outlined
below.
Effective as of today's date, the sections of Agreement enumerated below are
amended as follows:
SECTION 2
The monthly salary for services will be $8,000, payable as $4,000 in cash and
$4,000 worth of free trading common stock of Genius. Genius will have the option
to pay the entire monthly salary in cash.
Consultant will receive an option to purchase 3,000 shares of Genius common
stock for each new property (such as Goodnight Moon) for which a license is
acquired due to Consultant's efforts and as accepted by Genius at Genius's
discretion.
In addition to the option to purchase 40,000 shares of Genius common stock
previously granted and the options described above, Consultant will receive as
of today's date an option to purchase 50,000 restricted shares of Genius common
stock. The option exercise price will be set at today's closing market price.
The option will vest in two installments, one-half immediately and one-half on
March 1, 2004. The option agreement follows as Exhibit 1.
All options will be granted under the terms of Genius' stock option plan then in
effect.
SECTION 4
The Agreement will be effective for two years from today's date, subject to the
termination provisions of Section 11 of the Agreement.
Please sign below to acknowledge your acceptance of the amendments to the
Agreement as described in this letter. You may fax your signed copy of this
letter to my attention at 000-000-0000.
Regards, Agreed and acknowledged:
GENIUS PRODUCTS, INC. XXXXX XXXXXXXX ASSOCIATES, INC.
/s/ Xxxxx Xxxxxxx /s/ Xxxxx XxXxxxxx
By: Xxxxx Xxxxxxx, CEO By: Xxxxx XxXxxxxx, Consultant
cc: Xxxxxxx Xxxx, Payroll
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EXHIBIT 1
[Stock Option Agreement]
STOCK OPTION AGREEMENT
SECOND AMENDED AND RESTATED
2000 NON-QUALIFIED STOCK OPTION PLAN
This Stock Option Agreement is dated as of March 1, 2003, between
Genius Products, Inc. (the "COMPANY") and Xxxxx XxXxxxxx (the "GRANTEE").
WHEREAS, the Grantee is a consultant of the Company and has rendered or
will render valuable services; and
WHEREAS, the Company in recognition of such services has granted a
non-qualified option (the "OPTION") to Grantee as set forth therein and herein;
and
WHEREAS, the parties wish to ratify and memorialize the grant and the
terms and conditions by which the Option is governed; and
WHEREAS, the Company has adopted a stock option plan entitled 2000
Second Amended and Restated Non-Qualified Stock Option Plan (the "PLAN")
originally adopted by the board of directors on May 25, 2000, and as amended on
June 12, 2001 and November 20, 2001, under which shares of the Company's common
stock into which the Option is exercisable have been registered with the
Securities and Exchange Commission pursuant to a Form S-8 filed on May 25, 2000,
which will be amended by a subsequent filing which will include subsequent
amendments to the plan which include the increase of the number of shares
subject to the plan;
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
Section 1. GRANT OF OPTION. The Company hereby confirms the grant to
Grantee of the Option to purchase shares of common stock of the Company (the
"SHARES"), subject to the terms and conditions of the Consulting Agreement
between the Company and Grantee dated January 3, 2002, and as amended on March
1, 2003 (the "CONSULTING AGREEMENT"), this Option Agreement and those of the
Plan (which is incorporated herein by reference), as follows:
DATE OF GRANT NO. OF SHARES EXERCISE PRICE VESTING DATE(S) TERM
------------- ------------- -------------- --------------- ----
5 years from
March 1, 2003 50,000 $0.89 * date of grant
* The option will vest in two installments, one-half immediately and one-half on
March 1, 2004. Should the Consulting Agreement be terminated earlier than March
1, 2004, only options vested as of the date of termination will be exercisable
by Grantee. Pursuant to the last paragraph of Section 3 of the Consulting
Agreement, this option grant is subject to the same restrictions as the
Company's private placement which occurred in the first quarter of 2002.
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In the event of a conflict between the terms and conditions of the Plan
and this Option Agreement, the terms and conditions of the Plan shall prevail.
This Option is intended to be treated as a non-statutory (non-qualified) stock
option.
Section 2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option to purchase Shares shall be
exercisable at any time after the applicable Vesting Date and prior to the end
of the Term, subject to the applicable provisions of the Plan and this Option
Agreement.
(b) METHOD OF EXERCISE. This Option shall be exercisable by
delivery of an exercise notice in the form attached as EXHIBIT A (the "EXERCISE
NOTICE") which shall state the election to exercise the Option, the number of
Shares with respect to which the Option is being exercised, and such other
representations and agreements as may be required by the Company. The Exercise
Notice shall be accompanied by payment of the aggregate Exercise Price as to all
exercised Shares. This Option shall be deemed to be exercised upon receipt by
the Company of such fully executed Exercise Notice accompanied by the aggregate
Exercise Price.
(c) COMPLIANCE WITH APPLICABLE LAW. No Shares shall be issued
pursuant to the exercise of an Option unless such issuance and such exercise
complies with all applicable laws. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to the Grantee on the date
on which the Option is exercised with respect to such Shares.
Section 3. METHOD OF PAYMENT. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the sole
discretion of the Company:
(a) cash or check;
(b) consideration received by the Company under a formal
cashless exercise program adopted by the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an Option, have been owned by the Grantee for more
than six (6) months on the date of surrender, and (ii) have a fair market value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
Section 4. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Grantee only by
Xxxxxxx. The terms of the Plan and this Option Agreement shall be binding upon
the executors, administrators, heirs, successors and assigns of the Grantee.
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Section 5. TERM OF OPTION. This Option may be exercised only prior to
the Expiration Date set out in the Notice of Grant, and may be exercised during
such term only in accordance with the Plan and the terms of this Option.
Section 6. TAX CONSEQUENCES. Set forth below is a brief summary as of
the date of this Option of some of the federal tax consequences of exercise of
this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
(a) EXERCISE OF NON-QUALIFIED STOCK OPTION. There may be a
regular federal income tax liability upon the exercise of a Non-Qualified Stock
Option. The Grantee will be treated as having received compensation income
(taxable at ordinary income tax rates) equal to the excess, if any, of the fair
market value of the Shares on the date of exercise over the Exercise Price. If
Grantee is an employee or a former employee, the Company will be required to
withhold from Grantee's compensation or collect from Grantee and pay to the
applicable taxing authorities an amount in cash equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor the
exercise and refuse to deliver the Shares if such withholding amounts are not
delivered at the time of exercise.
(b) DISPOSITION OF SHARES. In the case of a Non-Qualified
Stock Option, if Shares are held for at least one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes.
Section 7. ENTIRE AGREEMENT; GOVERNING LAW. The Plan is incorporated
herein by reference. The Plan and this Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Grantee with respect to the subject matter hereof, and may not be modified
adversely to the Grantee's interest except by means of a writing signed by the
Company and Grantee. This agreement is governed by the internal substantive laws
but not the choice of law rules of California.
Section 8. SUCCESSORS AND ASSIGNS. The Company may assign any of its
rights under this Agreement to single or multiple assignees, and this Agreement
shall inure to the benefit of the successors and assigns of the Company. Subject
to the restrictions on transfer herein set forth, this Agreement shall be
binding upon Grantee and his or her heirs, executors, administrators, successors
and assigns.
Section 9. INTERPRETATION. Any dispute regarding the interpretation of
this Agreement shall be submitted by Grantee or by the Company forthwith to the
Administrator which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
all parties.
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Section 10. RECEIPT OF PLAN. Xxxxxxx acknowledges receipt of a copy of
the Plan and represents that he or she is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all of the terms and
provisions thereof. Grantee has reviewed the Plan and this Option Agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Option
Agreement. Grantee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising
under the Plan or this Option. Xxxxxxx further agrees to notify the Company upon
any change in the residence address indicated below.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Stock Option Agreement is executed on behalf
of the Corporation and its duly authorized officer and by Xxxxxxx as of the date
first written above.
GRANTEE: GENIUS PRODUCTS, INC.
/S/ Xxxxx XxXxxxxx /S/ Xxxxx Xxxxxxx
------------------------- ----------------------------
By: Xxxxx Xxxxxxx
Xxxxx XxXxxxxx Its: Chief Executive Officer
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EXHIBIT A
---------
[LETTERHEAD OF GRANTEE]
[Date]
Genius Products, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Corporate Secretary
EXERCISE NOTICE
2000 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
1. EXERCISE OF OPTION. Effective as of this ___ day of ___________,
_____, the undersigned ("Grantee") hereby elects to exercise Grantee's option to
purchase _________ shares of the Common Stock (the "SHARES") of Genius Products,
Inc. (the "COMPANY"), under and pursuant to that certain plan entitled the
Second Amended and Restated 2000 Non-Qualified Stock Option Plan adopted by the
Company originally as of May 25, 2000, and as amended on June 12, 2001, and
November 20, 2001 (the "PLAN") and the Stock Option Agreement dated ________,
____ (the "OPTION AGREEMENT").
2. DELIVERY OF PAYMENT. Grantee herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Option Agreement.
3. REPRESENTATIONS OF GRANTEE. Xxxxxxx acknowledges that Xxxxxxx has
received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Shares shall be issued to the
Grantee as soon as practicable after the Option is exercised.
5. TAX CONSULTATION. Xxxxxxx understands that Grantee may suffer
adverse tax consequences as a result of Xxxxxxx's purchase or disposition of the
Shares. Xxxxxxx represents that Grantee has consulted with any tax consultants
Grantee deems advisable in connection with the purchase or disposition of the
Shares and that Grantee is not relying on the Company for any tax advice.
6. TRANSFER RESTRICTIONS; STOP-TRANSFER ORDER.
(a) REFUSAL TO TRANSFER. Xxxxxxx acknowledges and agrees that the
Company shall not be required (i) to transfer on its books any Shares
that have been sold or otherwise transferred in violation of any of the
provisions of the Stock Option Agreement or the Plan or (ii) to treat
as owner of such Shares or to accord the right to vote or pay dividends
to any purchaser or other transferee to whom such Shares shall have
been so transferred.
(b) STOP-TRANSFER NOTICES. Grantee agrees that, in order to ensure
compliance with the restrictions referred to in the Stock Option
Agreement, the Company may issue appropriate "stop transfer"
instructions to its transfer agent, if any, and that, if the Company
transfers its own securities, it may make appropriate notations to the
same effect in its own records.
Submitted by: Accepted by:
GRANTEE: GENIUS PRODUCTS, INC.
____________________________ __________________________________
Signature Name:_____________________________
Title:____________________________
____________________________ __________________________________
Print Name Date received
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