EXHIBIT 10.8
SECOND AMENDED AND RESTATED
INCENTIVE STOCK OPTION AGREEMENT
This Second Amended and Restated Incentive Stock Option Agreement is made
as of the 16th day of July, 1993, by and between DMX ACQUISITION CORP., a
Delaware corporation (the "Company"), and XXXXXX X. XXXXXXX (the "Optionee").
BACKGROUND
Optionee is currently an employee of Datamax Corporation, a subsidiary of
the Company.
Optionee and the Company are parties to an Incentive Stock Option Agreement
dated September 4, 1991, as amended by an Amendment to Incentive Stock Option
Agreement dated November 12, 1991 (the "Agreement"). That Agreement was made
pursuant to the Investment Agreement by and between the Company, certain
investors and other persons, including the Optionee, also dated September 4,
1991 (the "Investment Agreement"), in which the Company agreed to grant to
Optionee certain options to purchase shares pursuant to Section 1.3 of the
Investment Agreement. In addition, the Company has adopted, and subsequently
amended, the DMX Acquisition Corp. Stock Option Plan (the "Plan"), and the
options granted in the Agreement were granted pursuant to the Plan.
The Agreement provided optionee with options to purchase 166,667 shares of
the Company's common stock in accordance with a vesting schedule. Optionee
exercised a portion of his options on October 9, 1992, and purchased 55,556
shares of common stock.
The Company and Optionee now wish to amend the Agreement to provide for
accelerated vesting of the unexercised portion of Optionee's stock option.
Optionee's will then be entitled to purchase 111,111 shares of the Company's
common stock pursuant to the terms of this Second Amended and Restated Incentive
Stock Option Agreement.
Paragraph 11 of the Agreement specifies the manner by which the Agreement
may be modified, and this Second Amended and Restated Incentive Stock Option
Agreement is executed pursuant to the requirements of paragraph 11. This Second
Amended and Restated Incentive Stock Option Agreement also restates the terms of
the Agreement that are currently effective.
AGREEMENT
In consideration of the mutual covenants and agreements contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to optionee the right and
option (hereinafter referred to as the "Option") to purchase up to an aggregate
of 166,667 shares of the Company's Common Stock (the "Stock") at an exercise
price of $.011 per share (the "Exercise Price"), on the terms and conditions
herein set forth. The date of grant of the Option is the date of the
Agreement. The Optionee has previously purchased 55,556 of the shares of Stock
subject to the Option, leaving 111,111 shares of Stock subject to this Option.
2. Period of Option and When Exercisable. The term of the Option shall
be as set forth below, subject to earlier termination as provided herein. Prior
to the expiration of the applicable portion of this Option, Optionee may
exercise the applicable portion of the option only in accordance with the
following schedule:
(a) As of July 16, 1993, 55,555 shares of Stock (of the remaining
111,111 shares of Stock subject to this Option) are immediately purchasable.
(b) As of December 31, 1993, all remaining shares of Stock subject to
this Option are immediately purchasable.
(c) This Option shall expire on May 15, 1995.
3. Exercise of Option. This Option shall be exercisable only during the
exercise period of the Option, only in accordance with the above schedule, and
only as long as Optionee is in Continuous Employment with the Company.
Notwithstanding the preceding sentence, as long as the exercise period has not
expired, the portion of this Option which is otherwise exercisable may be
exercised:
(a) upon termination of Optionee's employment with the Company, for a
period ending ninety (90) days after Continuous Employment of the Optionee has
ended other than as a result of a Termination (as such term is defined in the
Investment Agreement) and other than as covered in clauses (b), (c) or (d)
below; or
(b) by the estate of Optionee, within ninety (90) days after the date
of the Optionee's death, if the Optionee should die while in the Continuous
Employment of the Company or any Subsidiary, or any successor thereof; or
(c) within ninety (90) days after Optionee's employment with the
Company terminates, if Optionee becomes permanently disabled during Continuous
Employment with the Company and such disability is the cause of termination; or
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(d) if Optionee's employment by the Company is terminated by the
Company without "Cause" (as defined in Section 7.5 of the Investment Agreement),
by the Optionee, or his estate, within the applicable option period for each
portion of the Option which is exercisable.
The term "Continuous Employment" used in this section shall have the
meaning set forth in paragraph 9(b) of the Plan.
4. The Shares Purchased Under this Option are Designated Shares. The
Optionee agrees that any shares of Stock purchased pursuant to the exercise of
this Option shall be deemed to be "Designated Shares" under Section 7.1 of the
Investment Agreement. The shares purchased by Optionee pursuant to this option
shall be subject to all other provisions pertaining to Common Stock held by the
Optionee under the Investment Agreement.
5. Investment Representation and Agreement.
(a) Optionee represents that this Option and any shares purchased
pursuant to this Option are purchased for investment purposes only and for
Optionee's own account. Optionee acknowledges that this Option and the shares
pertaining to this Option are not registered under the Securities Act of 1933,
as amended, the Florida Securities and Investor Protection Act, or the
securities laws of any other state.
(b) Optionee agrees not to sell or otherwise transfer any shares of
Stock purchased pursuant to this Option without registration under the
Securities Act of 1933, as amended, and under any applicable state securities
law, unless such sale or transfer is exempt from registration. Optionee
acknowledges that the Company's books with respect to the transfer of any shares
of Stock purchased pursuant to this Option will reflect this transfer
restriction.
6. Restrictive Legend. Optionee hereby agrees that certificates
evidencing the shares of Stock purchased by Optionee pursuant to this Agreement
shall be stamped or otherwise imprinted with a conspicuous legend in the form
provided in Section 3 of the Shareholders' Agreement.
7. Incorporation of Terms and Conditions in the Plan. This Option is
subject to the terms and conditions contained in the Plan, and all amendments
thereto made from time to time, a copy of which is on file with the Company at
its principal business office and which Plan is by this reference thereto
incorporated herein.
8. Governing Law. This Agreement shall be governed by, interpreted under,
and construed in accordance with the laws of the State of Delaware.
9. Binding Effect; Assignability. This Agreement will inure to the
benefit of and be binding on the Company, its successors and assigns, including,
but not limited to, any Company or
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entity that may acquire all or substantially all of the Company's assets and
business or into which the Company may be consolidated or merged, and on
Optionee, his heirs and legal representatives, as the case may be. The Optionee
may not sell, assign, pledge or otherwise transfer any of such optionee's rights
hereunder, except by the laws of dissent and distribution, and any such sale,
assignment, pledge or other transfer in violation of this Section 9 shall be
void and of no force or effect.
10. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement and
supersedes any and all previous agreements between the parties, whether written
or oral, with respect to such subject matter.
11. Waiver or Modification. No waiver or modification of this Agreement
or of any covenant, condition, or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith.
Furthermore, no evidence of any waiver or modification shall be offered or
received in evidence in any proceeding, arbitration, or litigation between the
parties arising out of or affecting this Agreement or the rights or obligations
of any party hereunder, unless such waiver or modification is in writing and
duly executed as aforesaid. The provisions of this paragraph may not be waived
except as herein set forth.
12. Number and Gender. Whenever used herein, singular numbers shall
include the plural, the singular, and the use of any gender shall include all
genders.
13. Invalid Provision. The invalidity or unenforceability of any term or
provision of this Agreement or the nonapplication of any such term or provision
to any person or circumstance shall not impair or affect the remainder of this
Agreement, and the remaining terms and provisions hereof shall not be
invalidated but shall remain in full force and effect and shall be construed as
if such invalid, unenforceable, or nonapplicable provision were omitted.
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IN WITNESS WHEREOF, the Company and Optionee have executed this Second
Amended and Restated Incentive Stock Option Agreement as of the day and year
first above written.
"COMPANY"
DMX ACQUISITION CORP.
By: ________________________________
Xxxxxxx X. Xxxxx, Secretary
"OPTIONEE"
_____________________________________
Xxxxxx X. Xxxxxxx
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