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Exhibit 99.3
THE STOCK OPTION EVIDENCED BY THIS STOCK OPTION AGREEMENT, AND ANY SHARES
ACQUIRED UPON THE EXERCISE THEREOF, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE,
IN RELIANCE ON CERTAIN EXEMPTIONS PROVIDED THEREUNDER.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into
as of _____________, 1998 (the "Execution Date"), by and between XXXXXXX CENTRAL
HOLDINGS, INC., a Delaware corporation (the "Corporation"), and _______________
(the "Optionee").
WITNESSETH:
WHEREAS, as of the original date of grant of the Option (as defined
herein), the Optionee was an employee or director of the Corporation or one of
its subsidiaries;
WHEREAS, the Option was granted on the date set forth opposite the name
of the Optionee in Schedule I of this Agreement (the "Effective Date"), but such
grant was not previously evidenced by any formal executed written agreement; and
WHEREAS, the Corporation and the Optionee desire to reflect the terms
of the Option in this Agreement (it being agreed that the provisions of this
Agreement are not intended to constitute a modification of any material economic
terms of such Option).
In consideration of the premises and the mutual agreements and covenants
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement, the Corporation hereby grants, effective as of the Effective Date, to
the Optionee, the right and option (the "Option") to purchase that number of
shares of the Corporation's $.001 par value common stock (the "Common Stock")
set forth in Schedule I to this Agreement (the "Option Shares").
2. EXERCISE PRICE. The purchase price (the "Exercise Price") for each
Option Share shall be the price per share set forth in Schedule I to this
Agreement, subject to adjustment from time to time as hereinafter provided.
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3. EXERCISE OF OPTION.
(a) To the extent that the Option has become vested pursuant to
Schedule I to this Agreement and remains exercisable it may be exercised by the
Optionee delivering to the Corporation a written notice of exercise signed by
the Optionee, in substantially the form attached hereto as Exhibit A (a "Notice
of Exercise"), together with a check payable to the Corporation in the amount of
the total Exercise Price for the Option Shares to be purchased pursuant to the
Notice of Exercise.
(b) The Optionee may exercise the Option for less than the full
number of Option Shares with respect to which the Option is exercisable (the
"Available Option Shares"), but no fractional shares of Common Stock shall be
issued. Subject to the other restrictions on exercise set forth herein, the
unexercised portion of the exercisable Option may be exercised at a later date
by the Optionee.
(c) Within thirty (30) days after the exercise of the Option as
herein provided, the Corporation shall deliver to the Optionee a certificate or
certificates for the total Option Shares being purchased, in such names and
denominations as are requested by the Optionee.
(d) Neither the Option nor the Option Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or under the
securities laws of any state. Unless the issuance of shares of Common Stock are
covered by an effective registration statement at the time the Option is
exercised, each certificate representing Option Shares issued upon the exercise
of the Option shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL
ACCEPTABLE TO THE CORPORATION THAT REGISTRATION UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED SALE, PLEDGE OR TRANSFER.
The Optionee and the Corporation agree to execute such documents and instruments
as counsel for the Corporation reasonably deems necessary to ensure that the
granting of the Option and the issuance of any shares upon the exercise thereof
will be in compliance with applicable federal and state securities laws.
(e) The Corporation covenants and agrees that all Option Shares
which may be issued upon exercise of the Option shall, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, and free from all liens, claims and
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encumbrances, except restrictions imposed by applicable securities laws, the
Corporation's Articles of Incorporation and/or this Agreement. The Corporation
shall at all times reserve and keep available for issuance upon the exercise of
the Option such number of authorized but unissued shares of Common Stock as will
be sufficient to permit the exercise in full of the Option.
4. TERM OF OPTION.
(a) The term of the Option shall commence on the Effective Date set
forth in Schedule I to this Agreement, and shall continue in effect until the
first to occur of the following:
(i) the date on which the Option has been fully exercised with
respect to all of the Option Shares, or
(ii) the date specified as the expiration date of the Option in
Schedule I hereto (the "Expiration Date").
(b) In the event of the Optionee's death, the vested Option may be
exercised hereunder by the Optionee's personal representative, legatees or heirs
at law, as the case may be, and in the case of the Optionee's mental
incompetence, by his legal guardian, or if none has been appointed, by his duly
authorized attorney-in-fact.
5. NONTRANSFERABILITY. This Agreement, the Option and all rights
hereunder are nontransferable and nonassignable by the Optionee, other than by
the last will and testament of the Optionee or the laws of descent and
distribution, unless the Corporation consents thereto in writing. Any transfer
or attempted transfer except pursuant to the preceding sentence shall be null
and void and of no effect whatsoever.
6. ADJUSTMENTS.
(a) If, prior to the termination of the Option as provided in Section
4(a) hereof, the number of outstanding shares of Common Stock is increased by a
stock split, stock dividend, or other similar event, the Exercise Price in
effect immediately prior to such event shall be proportionately reduced, and
conversely, if the number of outstanding shares of Common Stock is decreased by
a combination or reclassification of shares, or other similar event, the
Exercise Price in effect immediately prior to such event shall be
proportionately increased. Upon each adjustment of the Exercise Price, the
Optionee shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment, and rounding down to the nearest whole share.
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(b) If, prior to the termination of the Option as provided in Section
4(a) hereof, the Corporation shall effect a merger, consolidation, exchange of
shares, recapitalization, reorganization or other similar event, or shall sell,
transfer or otherwise dispose of all or substantially all of its property,
assets or business, and, pursuant to the terms of such merger, consolidation,
exchange of shares, recapitalization, reorganization, or disposition of assets,
property or business, shares of Common Stock shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities of the Corporation, successor or transferee or an affiliate thereof
or cash or other property or assets, then the Optionee shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in this Agreement and in lieu of the Option Shares immediately
theretofore purchasable and receivable upon the exercise of the Option, such
shares of stock and/or securities, property or cash as may be issued or payable
with respect to or in exchange for the number of Option Shares immediately
theretofore purchasable and receivable upon the exercise of the Option had such
merger, consolidation, exchange of shares, recapitalization or reorganization
not taken place, and, in any such case, appropriate provisions shall be made
with respect to the rights and interests of the Optionee to the end that the
provisions hereof (including, without limitation, provisions for adjustment of
the Exercise Price and of the number of shares purchasable upon the exercise of
the Option) shall thereafter be applicable, as nearly as may be practicable in
relation to any shares of stock or securities, property or cash thereafter
deliverable upon the exercise hereof. The provisions of this paragraph shall
similarly apply to successive reorganizations, mergers, consolidations or
dispositions of assets. Upon any reorganization, consolidation. merger or
transfer hereinabove referred to, this Agreement and the Option shall continue
in full force and effect and the terms hereof shall be applicable to the shares
of stock and other securities, property, assets and cash receivable upon the
exercise of the Option after the consummation of such merger, consolidation,
exchange of shares, recapitalization, reorganization or transfer, as the case
may be. The Corporation shall not effect any such merger, consolidation,
exchange of shares, recapitalization, reorganization or transfer unless, prior
to the consummation thereof, the successor corporation (if other than the
Corporation) resulting therefrom or the corporation purchasing such assets
shall, by written instrument executed and mailed to the registered holder hereof
at the last address of such holder appearing on the books of the Company, (i)
assume the obligation to deliver to such holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, such holder may be
entitled to purchase, and (ii) agree to be bound by all the terms of this
Agreement.
7. INVESTMENT REPRESENTATION. Unless the issuance of shares of Common
Stock are covered by an effective registration statement at the time the Option
is exercised, as a condition to the issuance of Option Shares hereunder, the
Optionee shall represent to the Corporation that the Option Shares acquired
pursuant to such exercise are being purchased for his or her own account for
investment purposes only and not with a present view to resale or a distribution
thereof, unless the Corporation receives an opinion of counsel acceptable to the
Corporation that such a representation is not required under the Act or any
state securities laws. The Optionee acknowledges that he or she has no right to
require the Corporation or any other person or entity to (a) register under the
Act or any state securities law any shares of Common Stock issued upon exercise
of the Option, or (b) satisfy the conditions of Rule 144 of
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the Securities and Exchange Commission or any other rule or provision with
respect to the public sale of such Common Stock.
8. NO EMPLOYMENT RIGHT. Neither this Agreement nor the Option shall give
rise to any entitlement to the Optionee to continue to be employed or to serve
as a director or be compensated for any services by the Corporation or any of
its subsidiaries.
9. NO RIGHTS AS A SHAREHOLDER. The Optionee shall not have any interest in
or shareholder rights with respect to any shares of Common Stock (or other
securities) which are or may become subject to the Option until such shares (or
other securities) have been issued and delivered to the Optionee in accordance
with this Agreement.
10. TAXES. As a condition to the issuance of Option Shares hereunder, the
Corporation may withhold, or require the Optionee to pay or reimburse the
Corporation for, any taxes which the Corporation determines are required to be
withheld under federal, state or local law in connection with the exercise of
the Option
11. HEIRS AND SUCCESSORS. This Agreement and all terms and conditions
hereof shall be binding upon the Corporation and its successors and assigns, and
upon the Optionee and is heirs, legatees and legal representatives.
12. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia.
13. NOTICES. All notices, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered in person, when delivered by overnight
delivery service, or three (3) business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested, to the following
addresses (or to such other address as one party may from time to time designate
in writing to the other party hereto):
If to the Corporation: Xxxxxxx Central Holdings, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
If to the Optionee: At such address as is indicated in the
Corporation's records or at such other
address as may be communicated by the
Optionee in writing to the Corporation.
14. SEVERABILITY. The provisions of this Agreement, and of each separate
section and subsection, are severable, and if any one or more provisions may be
determined to be illegal or otherwise enforceable, in whole or in part, the
remaining provisions, and any unenforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
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IN WITNESS WHEREOF, the Corporation executed this Agreement as of the date
first set forth above.
XXXXXXX CENTRAL HOLDINGS, INC.
By:
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Chief Executive Officer
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EXHIBIT A
[DATE]
Xxxxxxx Central Holdings, Inc.
Attention: President
Re: Exercise of Stock Option
Dear Sir:
The undersigned, __________________, pursuant to that certain Stock Option
Agreement dated as of ____________________199_, by and between Xxxxxxx Central
Holdings, Inc. and the undersigned (the "Agreement"), hereby exercises the
Option granted under the Agreement for the following number of Option Shares,
subject to the terms and conditions of the Agreement:
Number of Option Shares Being Purchased:
-------------
Total Purchase Price and Amount Remitted:
-------------
Very truly yours,
---------------------------------
[Name]
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SCHEDULE I
NAME DATE OF EXPIRES SHARES EXERCISE PRICE CERT.
GRANT NUMBER
The Option shall become vested as to _____________ Option Shares on
each of _______________, ______________, and _________________. Notwithstanding
the foregoing, in the event of a Change in Control before the Option's
expiration, the Option shall thereupon become fully vested and immediately
exercisable.
"Change in Control" means the consummation or occurrence of:
(i) a merger, consolidation, share exchange, combination,
reorganization, or like transaction involving the Corporation
in which the shareholders of the Corporation immediately prior
to such transaction do not own at least fifty percent (50%) of
the value or voting power of the issued and outstanding
capital stock of the Corporation or its successor immediately
after such transaction;
(ii) the sale or transfer (other than as security for the
Corporation's obligations of more than fifty percent (50%) of
the assets of the Corporation in any transaction, a series of
related transactions, or a series of transactions occurring
within a one-year period in which the Corporation, any
corporation controlled by the Corporation, or the shareholders
of the Corporation immediately prior to the transaction do not
own at least fifty percent (50%) of the value or voting power
of the issued and outstanding equity securities of the
acquiror immediately after the transaction;
(iii) the dissolution or liquidation of the Corporation;
(iv) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"))(a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of voting securities
of the Corporation where such acquisition causes such person
to own 30% or more of the combined voting power of the then
outstanding voting securities of the Corporation entitled to
vote generally in the election of directors (the "Outstanding
Corporation Voting Securities"); provided, however, that for
purposes of this subsection (iv), the following shall not be
deemed to result in a Change in Control:
(A) any acquisition directly from the Corporation;
(B) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Corporation or any corporation controlled by the
Corporation; or
(C) any acquisition by a corporation by merger,
consolidation, share exchange, combination,
reorganization, sale, or transfer or like transaction
in which the shareholders of the Corporation
immediately prior to such transaction
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own at least fifty percent (50%) of the value or
voting power of the issued and outstanding capital
stock of the Corporation, its successor, or the
acquiror immediately after such transaction and in
which no Person (other than an employee benefit plan
or related trust sponsored or maintained by the
Corporation, any corporation controlled by the
Corporation, or corporation resulting from such
business combination) has beneficial ownership of 30%
or more of the combined voting power of the then
outstanding voting securities of such corporation;
and provided, further, that if any Person's beneficial
ownership of the Outstanding Corporation Voting Securities
reaches or exceeds 30% as a result of a transaction described
in clause (A) above, and such Person subsequently acquires
beneficial ownership of additional voting securities of the
Corporation, such subsequent acquisition shall be treated as
an acquisition that causes such Person to own 30% or more of
the Outstanding Corporation Voting Securities; or
(v) individuals who as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least
two-thirds of the directors then comprising the Incumbent
Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board.
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SCHEDULE TO EXHIBIT 99.3
X. Xxxxx Day, Jr.
Xxxxxx Xxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
