Exhibit 4.3
XXXXXXXX.XXX, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the 1st day of June, 2002 (the
"Grant Date"), by and between xxxxxxxx.xxx, inc. (the "Company"), and Xxxxxxx
Xxxx (the "Optionee").
WHEREAS, the Option (as defined below) is being granted
pursuant to the Separation Agreement, dated May 30, 2002, between the Company
and the Optionee (the "Separation Agreement");
WHEREAS, the grant of the Option is an essential inducement to
Optionee's entering into the Separation Agreement and the Optionee would not
have entered into the Separation Agreement but for the grant of the Option; and
WHEREAS the Option is not being granted pursuant to any of the
Company's stock option plans (the "Plans").
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Options.
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1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate of 425,000
whole Shares subject to, and in accordance with, the terms and conditions set
forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
1.3 This Agreement is subject to the Separation Agreement (the
provisions of which are incorporated herein by reference) and, except as
otherwise expressly set forth herein, the capitalized terms used in this
Agreement shall have the same definitions as set forth in the Separation
Agreement.
2. Purchase Price.
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The per share price at which the Optionee shall be entitled to
purchase the Shares covered by the Option upon exercise shall be the Fair Market
Value of a Share on the date hereof.
3. Duration of Option.
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The Option shall be exercisable to the extent and in the
manner provided herein for a period of ten (10) years from the Grant Date (the
"Exercise Term"); provided, however, that the Option may, upon the death of the
Optionee, be later exercised for up to one (1) year following the date of the
Optionee's death if such death occurs prior to the tenth anniversary of the
Grant Date.
4. Exercisability of Option.
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The Option shall be fully vested and exercisable on the Grant
Date; provided, however, that the Option shall be forfeited in full if the
Optionee revokes the General Release attached as Exhibit A to the Separation
Agreement.
5. Manner of Exercise and Payment.
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5.1 Subject to the terms and conditions of this Agreement, the
Option may be exercised by written notice delivered in person or by mail to the
Controller of the Company, at its principal executive offices, 000 Xxxxxxxx, Xxx
Xxxx, XX 00000. Such notice shall be substantially in the form attached hereto
as Exhibit I, shall state that the Optionee is electing to exercise the Option
and the number of Shares in respect of which the Option is being exercised and
shall be signed by the person or persons exercising the Option. If requested by
the Committee, such person or persons shall (i) deliver this Agreement to the
Secretary of the Company who shall endorse thereon a notation of such exercise
and (ii) provide satisfactory proof as to the right of such person or persons to
exercise the Option.
5.2 The notice of exercise described in Section 5.1 hereof
shall be accompanied by the full purchase price for the Shares in respect of
which the Option is being exercised, in cash, or, if permitted by the Committee,
by transferring Shares, either actually or by attestation, to the Company having
a Fair Market Value on the day preceding the date of exercise equal to the cash
amount for which such Shares are substituted. In addition, Options may be
exercised through a registered broker-dealer pursuant to such cashless exercise
procedures which, from time to time, are deemed acceptable by the Committee.
5.3 Upon receipt of notice of exercise and full payment for
the Shares in respect of which the Option is being exercised, the Company shall,
subject to Section 13 hereof, take such action as may be necessary to effect the
transfer to the Optionee of the number of Shares as to which such exercise was
effective. No fractional Shares (or cash in lieu thereof) shall be issued upon
exercise of an Option and the number of Shares that may be purchased upon
exercise shall be rounded to the nearest number of whole Shares.
5.4 The Optionee shall not be deemed to be the holder of, or
to have any of the rights of a holder with respect to, any Shares subject to the
Option until (i) the Option shall have been exercised pursuant to the terms of
this Agreement and the Optionee shall have paid the full purchase price for the
number of Shares in respect of which the Option was exercised, (ii) the Company
shall have issued and delivered the Shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares, subject to the terms of this
Agreement.
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6. Effect of Certain Transactions.
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In the event of a merger or consolidation of the Company with
or into another corporation, or the sale of substantially all of the assets of
the Company (a "Transaction"), the Option shall be assumed, or an equivalent
option shall be substituted, by the Successor Corporation; provided, however,
that, unless otherwise determined by the Committee, the Option shall remain
subject to all of the conditions and restrictions which were applicable to the
Option prior to such assumption or substitution. In the event that the Successor
Corporation refuses to or does not assume the Option or substitute an equivalent
option therefor, the Secretary of the Company shall notify the Optionee, and the
Optionee shall have the right to exercise the Option for a period of fifteen
(15) days (or such other period as shall be determined by the Board) from the
date of such notice, and the Option shall terminate upon the expiration of such
period. For the purposes of this paragraph, the Option shall be considered
assumed if, following the merger or sale of assets, the option confers the right
to purchase or receive upon exercise, for each Share subject to the Option
immediately prior to the Transaction, the consideration (whether stock, cash, or
other securities or property) received in the Transaction for each Share held on
the effective date of the Transaction (and if holders were offered a choice of
consideration, the type of such consideration as determined by the Board).
7. Non-Transferability.
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The Option shall not be transferable other than by will or by
the laws of descent and distribution or pursuant to a domestic relations order
(within the meaning of Rule 16a-12 promulgated under the Exchange Act), and the
Option shall be exercisable during the lifetime of the Optionee only by the
Optionee or his guardian or legal representative.
8. Limitation on Rights.
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Nothing in this Agreement shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of employment by
the Company or any of its affiliates, nor shall this Agreement interfere in any
way with the right of the Company or any of its affiliates to terminate the
Optionee's employment at any time.
9. Adjustments.
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9.1 In the event of a Change in Capitalization, the Committee
shall make appropriate adjustments, if any, to the number and class of Shares or
other stock or securities subject to the Option and the purchase price for such
Shares or other stock or securities. The Committee's adjustment shall be
effective and final, binding and conclusive for all purposes of this Agreement.
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9.2 If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise the Option with respect to new, additional or
different shares of stock or securities, such new, additional or different
shares shall thereupon be subject to all of the conditions and restrictions
which were applicable to the Shares subject to the Option prior to such Change
in Capitalization.
10. Withholding of Taxes.
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At such times as the Optionee recognizes taxable income in
connection with the receipt of Shares hereunder (a "Taxable Event"), the
Optionee shall pay to the Company an amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be withheld by
the Company in connection with the Taxable Event (the "Withholding Taxes") prior
to the issuance of such Shares. The Company shall have the right to deduct from
any payment or distribution of cash to the Optionee an amount equal to the
Withholding Taxes with respect to the Option.
11. Modification of Agreement.
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This Agreement may be modified, amended, suspended or
terminated, and any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
12. Severability.
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Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
13. Registration of Shares.
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13.1 The Company shall, as soon as practicable after the date
hereof, cause the Shares underlying the Option to be registered with the
Securities and Exchange Commission. The Option is subject to the requirement
that, if at any time the Committee determines, in its discretion, that the
listing, registration or qualification of Shares issuable pursuant to this
Agreement is required by any securities exchange or under any state or federal
law, or the consent or approval of any governmental regulatory body is necessary
or desirable as a condition of, or in connection with, the issuance of Shares,
no payment shall be made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions as acceptable to the Committee. The Board may make such
changes to the Option as may be necessary or appropriate to comply with the
rules and regulations of any governmental authority.
13.2 Notwithstanding anything contained in this Agreement to
the contrary, in the event that the disposition of Shares acquired pursuant to
this Agreement is not covered by a then current registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), and is not otherwise
exempt from such registration, such Shares shall be restricted against transfer
to the extent required by the Securities Act and Rule 144 or other regulations
thereunder. The Committee may require the Optionee, as a condition precedent to
receipt of Shares hereunder, to represent and warrant to the Company in writing
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that the Shares acquired by him are acquired without a view to any distribution
thereof and will not be sold or transferred other than pursuant to an effective
registration thereof under the Securities Act or pursuant to an exemption
applicable under the Securities Act or the rules and regulations promulgated
thereunder. The certificates evidencing any of such Shares shall be
appropriately amended to reflect their status as restricted securities as
aforesaid.
14. Governing Law.
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14.1 The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware without giving effect to the conflicts of laws principles thereof.
14.2 The obligation of the Company to sell or deliver Shares
covered by the Option shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws, and the
obtaining of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Committee.
15. Successors in Interest.
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This Agreement shall inure to the benefit of and be binding
upon any successor to the Company. This Agreement shall inure to the benefit of
the Optionee's legal representatives. All obligations imposed upon the Optionee
and all rights granted to the Company under this Agreement shall be final,
binding and conclusive upon the Optionee's heirs, executors, administrators and
successors.
16. Resolution of Disputes.
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Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation, construction or
application of this Agreement shall be determined by the Committee. Any
determination made hereunder shall be final, binding and conclusive on the
Optionee and the Company for all purposes.
17. Interpretation.
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The grant of the Option pursuant hereto is intended to comply
with Rule 16b-3 promulgated under the Exchange Act and the Committee shall
interpret and administer the provisions of this Agreement in a manner consistent
therewith. Any provisions inconsistent with such rule shall be inoperative and
shall not affect the validity of this Agreement.
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18. Administration.
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18.1 This Agreement shall be administered by the Committee.
The Committee shall consist of at least two (2) Directors and may consist of the
entire Board; provided, however, that if the Committee consists of less than the
entire Board, each member shall be a Nonemployee Director. For purposes of the
preceding sentence, if one or more members of the Committee is not a Nonemployee
Director but recuses himself or herself or abstains from voting with respect to
a particular action taken by the Committee, then the Committee, with respect to
that action, shall be deemed to consist only of the members of the Committee who
have not recused themselves or abstained from voting.
18.2 No member of the Committee shall be liable for any
action, failure to act, determination or interpretation made in good faith with
respect to this Agreement. The Company hereby agrees to indemnify each member of
the Committee for all costs and expenses and, to the extent permitted by
applicable law, any liability incurred in connection with defending against,
responding to, negotiating for the settlement of or otherwise dealing with any
claim, cause of action or dispute of any kind arising in connection with any
actions in administering this Agreement or in authorizing or denying
authorization to any transaction hereunder.
18.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
(a) to construe and interpret this Agreement and to
establish, amend and revoke rules and regulations
for the administration of this Agreement, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in this Agreement, in the manner and to the extent it shall deem
necessary or advisable, including so that this Agreement complies with Rule
16b-3 under the Exchange Act, the Code to the extent applicable and other
applicable law, and otherwise to make this Agreement fully effective. All
decisions and determinations by the Committee in the exercise of this power
shall be final, binding and conclusive upon the Company, its Subsidiaries, the
Optionee, and all other persons having any interest herein;
(b) to exercise its discretion with respect to the
powers and rights granted to it as set forth in
this Agreement; and
(c) generally, to exercise such powers and to perform
such acts as are deemed necessary or advisable
to promote the best interests of the Company with respect to this Agreement.
19. Board Approval.
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The effectiveness of this Agreement and of the grant of the
Option pursuant hereto is subject to the approval of the Board.
20. Definitions.
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For purposes of this Agreement:
20.1 "Board" means the Board of Directors of the Company.
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20.2 "Change in Capitalization" means any increase or
reduction in the number of Shares, or any change (including, but not limited to,
in the case of a spin-off, dividend or other distribution in respect of Shares,
a change in value) in the Shares or exchange of Shares for a different number or
kind of shares or other securities of the Company or another corporation, by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock split, cash dividend,
property dividend, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
20.3 "Code" means the Internal Revenue Code of 1986, as
amended.
20.4 "Committee" means the committee, appointed by the Board
from time to time, to administer this Agreement and to perform the functions set
forth herein.
20.5 "Director" means a director of the Company.
20.6 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
20.7 "Fair Market Value" on any date means the closing sales
price of the Shares on such date on the principal national securities exchange
on which such Shares are listed or admitted to trading, or, if such Shares are
not so listed or admitted to trading, the average of the per Share closing bid
price and per Share closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or such other
market (including the "pink sheets") in which such prices are regularly quoted,
or, if there have been no published bid or asked quotations with respect to
Shares on such date, the value established by the Committee in good faith.
20.8 "Nonemployee Director" means a director of the Company
who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
20.9 "Shares" means the common stock, par value $0.001 per
share, of the Company.
20.10 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
20.11 "Successor Corporation" means a corporation, or a parent
or subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a Transaction.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
xxxxxxxx.xxx, inc.
By:
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Name:
Title:
Optionee
By:
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Xxxxxxx Xxxx
Address:
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Exhibit I
NOTICE OF EXERCISE
xxxxxxxx.xxx, inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000 Date of Exercise: ____________
Ladies and Gentlemen:
This constitutes notice under my Nonqualified Stock Option Agreement
(the "Option Agreement") that I elect to purchase the number of shares for the
price set forth below.
Stock option dated: _____________________
Number of shares as to which option is
exercised: _____________________
Certificates to be issued in name of:
______________________
Total exercise price: $ ____________________
Cash payment delivered herewith:
$ ____________________
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By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms the Option Agreement, and (ii) to provide
for the payment by me to you (in the manner designated by you) of your
withholding obligation, if any, relating to the exercise of this option.
Very truly yours,
Xxxxxxx Xxxx
Address:
