EXHIBIT 10.22
XXXXX CORPORATION
STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of June, 1995,
by and between XXXXX CORPORATION, a Delaware corporation (the "Company"), and
XXXXX X. XXXXXX ("Xx. Xxxxxx").
W I T N E S S E T H:
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WHEREAS, Xx. Xxxxxx is entering into Amendment No. 1 to a Consulting
Agreement with the Company originally dated as of October 1, 1994, which
Amendment is being entered into in part in consideration of the granting of the
option described herein; and
WHEREAS, as additional consideration for the granting of the option
described herein, which is vested subject to divestiture, Xx. Xxxxxx is
cancelling his existing fully vested option to purchase 175,000 shares of the
Company's Class A Common Preference Stock at $10.50 per share.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom and from the Consulting
Agreement, the parties hereto agree as follows:
1. Grant of Option. The Company grants to Xx. Xxxxxx the right and
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option to purchase, on the terms and conditions hereinafter set forth, all or
any part of an aggregate of 300,000 shares (the "Shares") of the common stock
(the "Common Stock") of the Company at the price of $11.75 per Share (the
"Option"), exercisable from time to time subject to the provisions of this
Agreement prior to the close of business on June 11, 2005 (the "Expiration
Date"). The Option granted hereby is intended to be a nonqualified stock
option.
2. Exercisability of Option. Except as otherwise provided in this
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Agreement, and subject to the provisions of Section 5 below, this Option shall
be fully vested upon the date hereof and may be exercised from time to time as
to all or any portion of the Shares.
3. Method of Exercise of Option and Payment of Purchase Price. This
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Option shall be exercisable by the delivery to the Secretary of the Company of a
written notice stating the number of shares to be purchased pursuant to the
Option and accompanied by payment of the purchase price in full (i) in cash, or
(ii) by check made payable to the order of the Company. In addition, Xx. Xxxxxx
shall furnish any written statements required pursuant to Section 11 below.
Fractional Share interests shall be cashed out at that price equal to the fair
market value of a single share multiplied by the fraction
1.
representing the fractional Share which, but for this sentence, would otherwise
have been issuable.
4. Continuance of Consulting Agreement. Nothing contained in this
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Agreement shall confer upon Xx. Xxxxxx any right with respect to the
continuation of his status as a consultant by the Company or interfere in any
way with the rights of the Company under the Consulting Agreement, as amended.
5. Termination of the Consulting Agreement. In the event that the
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Consulting Agreement, as amended, is terminated for any reason other than (a)
the death of Xx. Xxxxxx, (b) in the case of termination by Xx. Xxxxxx, for any
reason other than Company Breach as defined in Section 1(c) of the Consulting
Agreement, as amended, or (c) in the case of termination by the Company, for any
reason other than cause, as defined therein (the foregoing hereinafter
collectively referred to as a "Termination"), on or before September 30, 1996,
the Option shall lose its vested status as to 125,000 of the Shares subject
thereto, and the Option shall be reduced to an option to purchase 175,000 shares
of Common Stock, and the Option as to the 175,000 Shares may still be exercised
in whole or in part on any one or more occasions on or prior to the Expiration
Date. In the event that a Termination occurs after September 30, 1996 and
before October 1, 1997, the Option shall lose its vested status as to 62,500 of
the Shares subject thereto, and the Option shall be reduced to an option to
purchase 237,500 shares of Common Stock, and the Option as to the 237,500 Shares
may still be exercised in whole or in part on any one or more occasions on or
prior to the Expiration Date.
6. Company Repurchase Option. If Xx. Xxxxxx exercises the Option in
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whole or in part prior to October 1, 1997, and there is a Termination prior to
October 1, 1977, the Company shall have an option (the "Repurchase Option"),
exercisable within thirty (30) days of the Termination, to repurchase at the
exercise price, plus simple interest at the rate of eight (8%) percent per
annum, any Shares purchased by Xx. Xxxxxx which would have otherwise been
subject to divestiture under Section 5 hereof if such Option had not been
exercised.
Notwithstanding any other provision of this Stock Option Agreement, Xx.
Xxxxxx shall not transfer, other than to a Permitted Transferee (as defined in
Section 7 hereof), any Shares subject to the Repurchase Option described in this
Section 6, and all such Shares shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE (1) ARE SUBJECT TO A CERTAIN
STOCK OPTION AGREEMENT, DATED JUNE 12, 1995, BY AND BETWEEN XXXXX
CORPORATION AND XXXXX X. XXXXXX, (2) ARE SUBJECT TO A REPURCHASE OPTION
HELD BY XXXXX CORPORATION, AS SET FORTH IN SECTION 6 OF SAID
2.
STOCK OPTION AGREEMENT, AND (3) MAY NOT BE TRANSFERRED OTHERWISE THAN IN
ACCORDANCE WITH THE PROVISIONS OF SAID STOCK OPTION AGREEMENT.
7. Non-Assignability of Option. During Xx. Xxxxxx'x lifetime, the Option
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and any other rights hereunder may be exercised only by Xx. Xxxxxx or by a
Permitted Transferee. The term "Permitted Transferee" shall mean any trust for
the benefit of Xx. Xxxxxx and/or any one or more of his children or other heirs
and/or any foundation, trust or not-for-profit corporation established by Xx.
Xxxxxx for charitable purposes. In the event of the death of Xx. Xxxxxx, the
Option in addition may be exercised in whole or in part by the person or persons
(including individuals and trusts, corporations, partnerships and other
entities) to whom Xx. Xxxxxx'x rights under this Option shall pass by will or by
the applicable laws of descent at any time on or prior to the Expiration Date.
The Option and such rights shall not be offered, sold, transferred, assigned,
pledged, hypothecated or otherwise disposed of in any way (whether by operation
of law or otherwise) except by will or the laws of descent and distribution or
to a Permitted Transferee, and shall not be subject to execution, attachment or
similar process. In the event of the death of Xx. Xxxxxx or a Permitted
Transfer, each recipient of all or any portion of this Option, and/or each
Permitted Transferee, will have and succeed to the rights and obligations of Xx.
Xxxxxx under the Option (provided that no such person will have any obligation
to perform under the Consulting Agreement). No sale, transfer, assignment,
pledge, hypothecation or other disposition of all or any portion of the Option
by Xx. Xxxxxx to a Permitted Transferee or by a Permitted Transferee to another
Permitted Transferee shall be effective unless and until the Company shall have
received an agreement in writing executed by the Permitted Transferee agreeing
to be bound by all the terms and conditions of this Agreement, including,
without limitation, Section 5 above.
8. Adjustment and Other Rights. If the outstanding shares of Common
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Stock are increased, decreased or changed into, or exchanged for, a different
number or kind of shares or securities of the Company through reorganization,
merger, combination, recapitalization, re-classification, stock/split, reverse
stock split, stock dividend, stock consolidation or otherwise, or a dividend or
other distribution is made with respect to the Common Stock either in Common
Stock or Class A Common Preference Stock or any other security of which the
Company or any affiliate of the Company is the issuer, or otherwise, an
appropriate and proportionate adjustment shall be made in the unexercised
portion of the Option or portions thereof so that Xx. Xxxxxx shall be entitled
to receive the number and kind of securities which he would have owned or would
have been entitled to receive immediately after the happening of any of the
events described above, had the Option been exercised immediately prior to the
happening of such event or any record date with respect thereto. Any such
3.
adjustment, however, shall be made without change in the total price applicable
to the unexercised portion of the Option, but with a corresponding adjustment in
the price for each share.
In the event of an extraordinary dividend of cash or other property (other
than securities), the Board of Directors will consider the extent to which it
would be equitable under the circumstances to reduce the option exercise price
to reflect the extraordinary nature of such dividend. If the Board determines
that such an adjustment would be equitable under the circumstances, an
appropriate reduction in the exercise price will be made, the amount of such
adjustment to be in the discretion of the Board.
If the Company proposes to dissolve, or to liquidate or proposes in one or
more transactions to combine, merge or consolidate with or into any other
corporation, or to sell, all or substantially all of its assets whether for
cash, securities, notes or any other property or consideration, the Option shall
be adjusted effective as of the Closing of such transaction so as to apply to
the cash, securities, notes or other property or consideration to which a holder
of the number of shares of Common Stock subject to the unexercised portion of
the Option would have been entitled by reason of such transaction. In the event
the consideration to be received by holders of Common Stock in any such
transaction is other than exclusively cash and/or publicly traded common stock
listed on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ-NMS and having voting rights no less than those granted to any other
class or series of the voting securities of such surviving corporation, and in
the further event that, upon consummation, the holders of Common Stock hold a
minority of the outstanding voting equity of the surviving entity, then the
Option will be deemed fully vested, and not subject to the divestiture or
repurchase provisions of Section 5 above, and may be exercised at the option of
Xx. Xxxxxx without the payment of any exercise price, by the netting of the
exercise price against the cash, securities, notes or other property or
consideration to be received in connection with or as a result of such
transaction.
The Company and Xx. Xxxxxx will meet and confer in good faith to determine
any appropriate adjustments which may be required in order to carry out the
intent of the immediately preceding paragraphs; provided, however, that if the
parties are unable to agree as to such adjustments within a period of five (5)
days or such longer period as they may mutually agree, the matter shall be
resolved by binding arbitration conducted in Los Angeles, California under the
rules of the American Arbitration Association (the "AAA"). The arbitrators will
be chosen from one or more panels proposed by the AAA as follows: the Company
and Xx. Xxxxxx will each select one arbitrator and those two arbitrators will
then select a third arbitrator from the panel. The parties shall use their good
faith efforts to resolve such arbitration within a period of
4.
forty-five (45) days following selection of the arbitration panel. All costs of
arbitration will be paid for by the Company, unless the arbitration panel
determines that the last adjustment proposed by the Company was the correct
adjustment, in which case the cost of arbitration will be borne by Xx. Xxxxxx.
Until such determination is made, all such costs will be advanced by the
Company. The determination of the arbitrators will be final and non-
appealable, but may be enforced in any court of competent jurisdiction. If the
arbitration results in a delay in the receipt by Xx. Xxxxxx of any cash,
securities, notes, property or other consideration due to exercise of all or any
portion of this Option prior to the completion of such arbitration, the
arbitrator will also award to Xx. Xxxxxx, in the event he is the prevailing
party, such amount in cash as will fairly compensate Xx. Xxxxxx for such delay.
9. Limitation of Xx. Xxxxxx'x Rights. In no event shall Xx. Xxxxxx have
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any of the rights or privileges of a shareholder of the Company in respect of
any Shares issuable upon exercise of this Option unless and until such Option
shall have been exercised by Xx. Xxxxxx.
10. Effect of Agreement. This Agreement shall be assumed by, binding upon
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and inure to the benefit of any successor corporation to the Company.
11. Representations of Xx. Xxxxxx. Xx. Xxxxxx represents, agrees and
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certificates that:
a. If Xx. Xxxxxx exercises the Option in whole or in part at a time
when there is not in effect under the Securities Act of 1933, as amended (the
"Act"), a registration statement relating to the Shares issuable upon exercise
hereof and available for delivery to him a prospectus meeting the requirements
of Section 10(a)(3) of the Act, Xx. Xxxxxx will acquire the Shares issuable upon
such exercise for the purposes of investment and not with a view to their resale
or distribution and, upon each exercise of this Option, Xx. Xxxxxx will furnish
to the Company a written statement to such effect, reasonably satisfactory in
form and substance to the Company and its counsel;
b. If and when Xx. Xxxxxx proposes to offer to sell Shares which are
issued to Xx. Xxxxxx upon exercise of this Option at a time when there is not in
effect under the Act a registration statement relating to the resale of such
Shares and available for delivery a prospectus meeting the requirements of
Section 10(a)(3) of the Act, Xx. Xxxxxx will notify the Company prior to any
such offering or sale and will not offer or sell such Shares without first
delivering to the Company an opinion of counsel reasonably acceptable to the
Company to the effect that such offering and sale should not constitute a
violation of such laws for which the Company would be liable; and
5.
c. No Shares may be acquired hereunder pursuant to exercise of the
Option granted hereby unless and until any then applicable requirements of the
Securities and Exchange Commission, the California Department of Corporations,
other regulatory agencies, including any other state securities law
commissioners, having jurisdiction over the Company or such issuance, and any
exchanges upon which Common Stock of the Company may be listed shall have been
fully satisfied. The Company undertakes, at its own cost, to promptly satisfy
all such then applicable requirements and to promptly reimburse Xx. Xxxxxx for
any costs which he may incur (including, without limitation, reasonable
attorneys fees and expenses) in satisfying all such then applicable
requirements.
Xx. Xxxxxx understands that the certificate or certificates representing
any Shares acquired upon the exercise, in whole or in part, of the Option may
bear a legend referring to the foregoing matters and any limitations under the
Act and state securities laws with respect to the transfer of such Shares, and
the Company may impose stop transfer instructions to implement such limitations,
if applicable.
12. Notices. Any notice to be given under the terms of this Agreement
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shall be in writing and addressed to the Secretary of the Company at its
principal office and to Xx. Xxxxxx at the address given beneath Xx. Xxxxxx'x
signature hereto, or at such other address as either party or any Permitted
Transferee, if any, may hereinafter designate in writing to the other.
13. Laws Applicable to Construction. The interpretation, performance and
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enforcement of this Agreement and all rights and obligations of the parties
hereunder shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf by a duly authorized officer and Xx. Xxxxxx has hereunto set his
hand.
XXXXX CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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S. Xxxxx Xxxxxxxx, President
/s/ Xxxxx X. Xxxxxx
___________________________________
XXXXX X. XXXXXX
000 X. Xxxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
6.
