Exhibit 4.4(b)
OPTION AGREEMENT
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[Date of Option]
TO: [Name of Optionee]
Re: Non-Qualified Stock Option
Midway Games Inc. 1998 Non-Qualified Stock Option Plan
This letter will evidence the grant to you on ___________ ("Grant Date") by
the Compensation and Stock Option Committee of the Board of Directors of Midway
Games Inc. (the "Company") of an option pursuant to the Company's 1998
Non-Qualified Stock Option Plan (the "Plan") to purchase ___________ (_____)
shares ("Total Grant") of the common stock, par value $.01 per share ("Common
Stock"), of the Company at a price of ___________ ($_______ ) per share (the
"Option"). Under applicable provisions of the Internal Revenue Code of 1986, as
amended, the Option is treated as a non-qualified stock option.
This Option is issued in accordance with and is subject to and conditioned
upon all of the terms and conditions of this Agreement and of the Plan as from
time to time amended, provided, however, that no future amendment or termination
of the Plan shall, without your consent, alter or impair any of your rights or
obligations under the Plan, all of which are incorporated by reference in this
Agreement as if fully set forth herein.
In consideration of the granting of this Option by the Company, you hereby
agree to render faithful and efficient services to the Company or to the
subsidiary of the Company which is your primary "Employer," with such duties and
responsibilities as your Employer shall from time to time prescribe, for a
period of at least one (1) year from the date this Option is granted and you
further agree that for a period of one (1) year after your termination of
employment, you will not own, manage, control or associate with -- as an agent,
officer, employee, investor, lender, or otherwise -- any business entity in the
United States which is a "Competitor" of your Employer. The terms "Employer" and
"Competitor" are defined on Exhibit A. You hereby specifically agree that the
scope of the above covenant is reasonable and fair. Should, however, a Court of
competent jurisdiction deem it to be impermissibly overbroad, it is the
intention of the parties to this Agreement that the covenant be enforced as to
the greatest extent deemed to be enforceable. Further, you hereby agree that
during your employment and thereafter, you will not disclose, discuss, copy or
otherwise use or allow to be used, in any manner, in competition with or
contrary to the interests of the Company or any of its subsidiaries, the
customer lists, product research, engineering data or other trade secrets of the
Company or any of its subsidiaries. Nothing in this Option Agreement or in the
Plan shall confer upon you any right to continue in the employ of the Company or
any subsidiary of the Company or shall interfere with or restrict in any way the
rights of the Company and its subsidiaries, which are hereby expressly reserved.
The Company shall not be obligated to issue any shares pursuant to this
Option if, in the opinion of counsel to the Company, the shares to be so issued
are required to be registered or otherwise qualified under
the Securities Act of 1933, as amended, or under any other applicable statute,
regulation or ordinance affecting the sale of securities, unless and until such
shares have been so registered or otherwise qualified.
It is understood that the Company may establish, from time to time,
appropriate procedures to provide for payment or withholding of such income or
other taxes as may be required by law to be paid or withheld in connection with
the exercise of this Option. By the execution hereof, you hereby agree to pay to
the Company all such amounts requested by the Company to permit the Company to
take any tax deduction available to it resulting from the exercise of this
Option. You also agree to comply with any procedures established, from time to
time, by the Company to ensure that the Company receives prompt advice
concerning the occurrence of any event which may create, or affect the timing or
amount of, any obligation to pay or withhold any such taxes or which may make
available to the Company any tax deduction resulting from the occurrence of such
event.
This Option may be exercised as follows:
____________________________________________. This Option, to the extent not
previously exercised, shall expire on the day preceding the tenth anniversary of
the Grant Date.
This Option is to be exercised by delivering to the Company a written
notice of exercise in the form attached hereto as Exhibit B, together with
payment as provided in the Plan.
Would you kindly evidence your acceptance of this Option and your agreement
to comply with the provisions of this Agreement and of the Plan by executing the
enclosed copy of this Agreement under the words "ACCEPTED AND AGREED TO" and
returning a copy to Xxxxx X. Xxxxxx, Vice President and Secretary of the
Company.
Very truly yours,
MIDWAY GAMES INC.
By:____________________
Xxxx X. Xxxxxxxx
President
Attachment
ACCEPTED AND AGREED TO
this _____day of _____________, 19____
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[Name of Optionee]
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EXHIBIT A
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If your "Employer" is: A "Competitor" is an entity engaged in:
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Midway Games Inc. The design, manufacture or sale of
Midway Home Entertainment Inc. coin-operated video games or the designing,
Midway Interactive Inc. publishing and/or marketing of interactive
Midway/Nintendo Inc. entertainment software for use on dedicated
Atari Games Corporation video game platforms and personal computers.
Tengen, Inc.
K. K. Time Warner Interactive
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EXHIBIT B
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Dated:________
Vice President and Secretary
MIDWAY GAMES INC.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Gentlemen:
Notice is hereby given of my election to purchase ____ shares of common
stock, par value $.01 per share (the "Common Stock"), of Midway Games Inc. (the
"Company") at a price of ___________($__________) per share pursuant to the
provisions of the stock option ("Option") granted to me on __________ under the
terms of the Midway Games Inc. 1998 Non-Qualified Stock Option Plan.
Enclosed is my check made payable to the Company in the amount of $_______
in payment of the exercise price of the Option.
The following information is supplied for use in issuing and registering
the shares purchased hereby:
Number of certificates: _______________
Denomination of
each certificate: _______________
Name: _______________
Address: _______________
_______________
Social Security Number: _______________
Very truly yours,
_________________
[Name of Optionee]
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