EXHIBIT 4.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of July 5, 1999, by and between
MegaMedia Networks, Inc.(the "Company"), and Xxxx X. Xxxxx, (the "Optionee").
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In consideration for the Optionee signing an Employment Agreement of
even date herewith (the "Employment Agreement") with the Company 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 100,000 fully paid and non-assessable shares of
Common Stock par value $.01 per share of the Company (the "Shares"), subject to
the vesting provisions described below.
B. This Option shall vest in Executive on the earliest to occur of the
following:
(i) On July 4, 2001, provided that Executive remains employed by
Company, a parent or subsidiary corporation of Company; or
(ii) Upon termination of Executive's employment by Company without
"Cause" (as defined in paragraph 8D of the Employment Agreement) prior to July
4, 2001; or
(iii) Upon Executive's termination of his employment for
"Constructive Discharge" (as defined paragraph 8C of the Employment Agreement)
prior to July 4, 2001; or
(iv) A "change in control" of the Company, prior to July 4, 2001.
A "change in control" of the Company shall be defined as (i) a sale, purchase,
merger or other business combination which results in transfer to a third party
of an ownership interest of greater than 50% of the Company or any successor
entity to the Company, (ii) a sale or other disposition of all or substantially
all of the Company's assets, or (iii) election by the shareholders of the
Company of persons to serve as directors of the Company, comprising more than
one-half (1/2) the total number of directors, persons who were not nominated or
recommended to the shareholders for election as directors by the Board's
nominating committee.
C. The date on which the Option vests under this paragraph shall be
known as the "Vesting Date".
D. The Option once vested, may be exercised during the period ("Option
Period") commencing on the Vesting Date and expiring at 5:00 p.m. Eastern
Standard Time on the date that is exactly ten (10) years after the Vesting Date.
For example, if the Vesting Date is July 4, 2001, the Option Period shall expire
at 5:00 PM on July 4, 2011. Upon expiration of the Option Period the
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Optionee shall have no further right to purchase any Shares not then purchased.
The Company shall at all times during the Option Period have available such
number of Shares as will be sufficient to satisfy the Option.
E. It is not intended that these Options qualify as Incentive Stock
Options within the meaning of Section 422A of the Internal Revenue Code of 1986,
as amended (the "Code").
2. Exercise Price
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The exercise price of the Option (the "Exercise Price") shall be Three
Dollars ($3.00) per Share, and shall be payable by certified or bank check
payable to the order of the Company at the time of the exercise. As an
alternative, Optionee may present Shares already owned by the Optionee with a
market value at least equal to the aggregate Exercise Price of the Options which
Optionee seeks to exercise.
3. Exercise of Option
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The Optionee may exercise this Option in whole or in part, by providing
notice to the Company, in the form attached as Exhibit A, by registered or
certified mail, return receipt requested, or by overnight mail or personal
delivery, addressed to its principal office, signed by Optionee, indicating the
number of Options which he desires to exercise. The notice shall be accompanied
by payment of the Exercise Price as specified in Paragraph 2 above. As soon as
practicable after the receipt of such notice of exercise, the Company shall
cause the Company's transfer agent to issue to the Optionee certificates issued
in the Optionee's name evidencing the Shares purchased by the Optionee.
4. Death of Optionee
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In the event of the death of the Optionee, any unexercised portion of
his Option shall be exercisable (to the extent that such Option was exercisable
at the time of his death) for one hundred and twenty (120) days after the
Optionee's death only by his personal representative or such persons to whom the
deceased Optionee's rights shall pass under the Optionee's will or by the laws
of descent and distribution.
5. Non-Transferability of Option
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The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the Option or any interest
therein, otherwise than by will or the laws of descent and distribution and,
except as provided in this paragraph and paragraph 4, the Option shall be
exercisable only by the Optionee. 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.
6. Restriction on Issuance of Shares - Investment Representation. By
accepting the Option, the Optionee agrees for himself, his heirs and legatees
that any and all Shares purchased upon the exercise of the Option shall be
acquired for investment and not for distribution. All shares acquired by
Executive under these provisions will be subject to statutory restrictions,
registration and to such lockup agreements as Company may reasonably require of
its executives. Upon the issuance of any or all of the Shares subject to the
Option, the Company, in its discretion, 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 of Directors, that such Shares are
being acquired in good faith for investment and not for distribution. The
Company may place a "stop transfer" order with respect to such Shares with its
transfer
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agent and will place an appropriate restrictive legend on the certificate(s)
evidencing such Shares. The Company agrees to register the Shares as part of any
Form S-8 registration by the Company for so long as any Shares subject to
Options remain outstanding.
7. Adjustments Upon Changes in Capitalization
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A. The Stock Option referenced herein shall not be subject to any
dilution as to percentage of ownership, that differs from any dilution of
percentage of ownership that may be from time to time be appropriately approved
and undertaken by the Company and that is applicable to all issued and
outstanding stock of the Company. In the event that the outstanding shares are
changed into or exchanged for a different number or kind of shares or securities
of the Company, or of any other corporation, by reason of reorganization,
merger, or other subdivision, consolidation. Recapitalization, reclassification,
stock split, stock divided or combination of shares or similar event, the
Company shall make an appropriate and equitable adjustment to the Stock Option
or to the Purchase Price so that Executive's proportionate interest shall be
maintained as before the occurrence of such event to the maximum extent
possible.
B. Any adjustment in the number of Shares shall apply proportionately
to only the then unexercised portion of the Option. If fractional Shares would
result from any such adjustment, the adjustment shall be revised to the next
higher whole number.
8. No Rights as Stockholder
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The Optionee shall have no rights as a stockholder in Shares as to
which the Option has not been exercised.
9. Taxes
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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 the
exercise of the Option granted hereby. The Company may further require
notification from the Optionee upon any disposition of Shares acquired pursuant
to the exercise of the Options granted hereunder.
10. Binding Effect
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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.
11. Governing Law.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida applicable to agreements made and to be
performed wholly within the State of Florida
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
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Witness: MegaMedia Networks, Inc.
---------------------- By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx, Xx., President
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Witness: Optionee: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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EXERCISE FORM
(To be Executed If Optionee Desires to Exercise the Options)
TO: MegaMedia Networks, Inc.
The undersigned, being the Optionee of certain options ("Options") to
purchase shares of common stock of MegaMedia Networks, Inc. (the "Company" and
the "Shares"), under the conditions thereof, hereby exercises Options to
purchase __________________ Shares evidenced by the within Option Agreement, and
herewith makes payment of the exercise price in full in cash or immediately
available funds or by presenting shares already owned by the Optionee with a
market value at least equal to the aggregate exercise price due.. Kindly issue
all Shares to the undersigned and deliver them to the undersigned at the address
stated below. If such number of Shares shall not be all of the Shares
purchasable under the within Option Agreement, please issue a new Option
Agreement of like tenor for the balance of the remaining Shares purchasable
hereunder to be delivered to the undersigned at the address stated below.
By signing below, the Undersigned acknowledges that he has received
such financial and other information to his satisfaction regarding the Company
as he requires to make an informed investment decision. The Undersigned has had
the opportunity to ask questions and receive answers from the Company regarding
the Shares and the Company. The Undersigned further acknowledges that he is
aware that the Shares issued pursuant to this exercise may be restricted from
transfer.
Name ____________________________________
(Please Print)
Address _________________________________
___________________________ Signature _______________________________
Dated _____________________
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