EXHIBIT 4.3
ZINDART LIMITED
STOCK OPTION AGREEMENT
FOR XXXXX X.X. XXXXXXXX
THIS STOCK OPTION AGREEMENT (the "Agreement") is made as of October 31,
2000 (the "Effective Date"), between Zindart Limited, a Hong Kong corporation
(the "Company"), and Xxxxx X.X. Xxxxxxxx (the "Optionee").
1. Grant of Option. The Company hereby agrees to grant to the Optionee
an option (the "Option") to purchase 380,000 American Depositary Shares (the
"Shares"), of which the Company's Ordinary Shares (the "Ordinary Shares") are
the underlying security, at an exercise price of $2.50 per ADS (the "Exercise
Price"), for an aggregate exercise price of $950,000. This Option is not
intended to be an incentive stock option within the meaning of Section 422 of
the U.S. Internal Revenue Code of 1986, as amended (the "Code").
2. Conditions of Exercise.
(a) This Option may be exercised in whole or in part at any time
as to 100% of the Shares, whether vested or unvested.
(b) Except as otherwise provided herein, the right of the
Optionee to purchase Shares with respect to which this Option has become
exercisable may be exercised in whole or in part at any time or from time to
time prior to expiration of the Option term. This Option may not be exercised
for a fraction of a share.
(c) This Option is exercisable by delivery of an exercise notice,
in the form attached as Exhibit A-1 (the "Exercise Notice"), which shall state
the election to exercise the Option, the number of Shares in respect of which
the Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company. The Exercise
Notice shall be completed by the Optionee and delivered to the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all Exercised Shares. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice accompanied by
such aggregate Exercise
Price.
3. Vesting Schedule. This Option shall be exercisable during its term as
follows:
(a) Conditions of Vesting. This Option shall vest in accordance
with the Vesting Schedule set forth in subsection (b) below.
(b) Vesting Schedule. Subject to the provisions of Section 12,
one-third of the Shares subject to the Option shall vest on the first
anniversary of the Effective Date and one twenty-fourth of the Shares shall
subsequently vest on each monthly anniversary of the Effective Date thereafter,
subject to Optionee's continuing to provide employment or consulting services to
the Company as of each such date.
4. Term of Option. Subject to earlier termination as specified herein,
this Option may be exercised until ten years after the Effective Date, after
which this Option shall terminate.
5. Termination of Relationship. In the event of termination of
Optionee's continuous status as an employee or consultant of the Company or a
subsidiary of the Company for any reason other than death or Disability (as
defined in Section 6 below), this Option may be exercised for a period of three
(3) months after the date of such termination (but in no event later than the
expiration date of this Option as set forth in Section 4 above) to the extent
that the Option is vested on the date of such termination. To the extent that
Optionee does not exercise this Option within the time specified herein, the
Option shall terminate.
6. Disability of Optionee. In the event of termination of Optionee's
continuous status as an employee or consultant of the Company or a subsidiary of
the Company as a result of Optionee's disability (within the meaning of Section
22(e)(3) of the Code) ("Disability"), this Option may be exercised for a period
of twelve (12) months after the date of such termination (but in no event later
than the expiration date of this Option as set forth in Section 4 above) to the
extent that the Option is vested on the date of such termination. To the extent
that Optionee does not exercise this Option within the time specified herein,
the Option shall terminate.
7. Death of Optionee. In the event of the death of Optionee, the Option
may be exercised at any time within twelve (12) months following the date of
Optionee's death (but in no event later than the expiration date of this Option
as set forth in Section 4 above), by the Optionee's estate or by a person who
acquired the
right to exercise the Option by bequest or inheritance, to the extent that the
Optionee was entitled to exercise the Option at the date of death. If, after
death, the Optionee's estate or a person who acquired the right to exercise the
Option by bequest or inheritance does not exercise the Option within the time
specified herein, the Option shall terminate.
8. Optionee's Representations. In the event the Shares have not been
registered under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), at the time this Option is exercised, the Optionee shall, if required by
the Company, concurrently with the exercise of all or any portion of this
Option, deliver to the Company his Investment Representation Statement in the
form attached hereto as Exhibit A-2.
9. Method of Payment. Payment of the aggregate Exercise Price shall be
by cash, check or by any other means of exercise authorized from time to time by
the Board of Directors of the Company (the "Board") or a committee appointed by
the Board.
10. Non-Transferability of Option. Except under the laws of descent and
distribution or as otherwise provided by the Board in accordance with applicable
law, the Optionee shall not be permitted to sell, transfer, pledge or assign the
Option or this Stock Option Agreement; provided, however, that the Optionee
shall be permitted to transfer this Option to a trust controlled by the Optionee
during the Optionee's lifetime for estate planning purposes. Unless transferred
pursuant to the foregoing sentence, the Option shall be exercisable, during the
Optionee's lifetime, only by the Optionee. Without limiting the generality of
the foregoing, except as otherwise provided herein, the Option may not be
assigned, transferred, pledged or hypothecated in any way, shall not be
assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, and the levy of any execution, attachment or similar process upon the
Option shall be null and void and without effect.
11. Restricted Stock Option. Optionee may elect to exercise any portion
of the Option prior to the Shares becoming vested pursuant to Section 3 hereof.
Upon exercise of the Option to purchase unvested Shares, Optionee shall receive
shares of stock, which until vested, shall be restricted ("Restricted Stock").
The Restricted Stock shall be subject to the following terms and conditions:
(a) Transferability. The Optionee shall not transfer, assign,
encumber or otherwise dispose of any Restricted Shares, except (i) by will or by
the laws of descent or distribution or (ii) by transfer to the Company in pledge
as security for payment of the Note, where permitted pursuant to Section 9
hereof. If the Optionee transfers any Restricted Shares, this Section 11 shall
apply to the transferee to the same extent as the Optionee.
(b) Escrow. Upon issuance, if requested by the Company, the
certificates for Restricted Shares shall be deposited in escrow with the Company
to be held in accordance with the provisions of this Agreement. Any new,
substituted or additional securities or other property described in Section 12
shall immediately be delivered to the Company to be held in escrow, but only to
the extent the Shares are at the time Restricted Shares. All regular cash
dividends on Restricted Shares (or other securities at the time held in escrow)
shall be paid directly to the Optionee and shall not be held in escrow.
Restricted Shares, together with any other assets or securities held in escrow
hereunder, shall be released from escrow upon the Optionee's request to the
extent the Shares are no longer Restricted Shares (but not more frequently than
once every six months).
12. Adjustments Upon Changes in Capitalization, Merger or Change in
Control.
(a) If any change is made to the Ordinary Shares, or Shares
subject to the Option hereunder, without the receipt of consideration by the
Company (through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination or reclassification of Ordinary Shares,
exchange of stock, change in corporate structure or other transaction not
involving the receipt of consideration by the Company), the number of Shares
covered by this Option, as well as the Exercise Price of this Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
Ordinary Shares. Such adjustments shall be made on good faith by the Board,
whose good faith determination shall be final, binding and conclusive. (The
conversion of any convertible securities of the Company shall not be treated as
a "transaction not involving the receipt of consideration by the Company.")
(b) In the event of a Change in Control (as defined below), at
the sole election of the Optionee (i) any surviving or acquiring corporation
shall be required to assume the Option or an equivalent option shall be
substituted, or (ii) the vesting of the Option shall be accelerated such that
the Option granted hereunder shall immediately vest, in its entirety, at or
prior to such event. For purposes of this Agreement, "Change in Control" means:
(1) a dissolution, liquidation, or sale of all or substantially all of the
assets of the Company; (2) a merger or consolidation in which the Company is not
the surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common shares outstanding
immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise; (4) an expression of intent to acquire control notified to the
Company under Section 13(d)(1)(C) of the U.S. Securities Exchange Act of 1934,
as amended, which acquisition is subsequently effected; or (5) a change in
control of the Company effected by a successful tender offer for more than 50%
of the outstanding voting securities of the Company.
13. Tax Consequences. Some of the federal tax consequences relating to
the exercise and disposition of this Option, as of the date of this Option, are
set forth below. Optionee acknowledges that he has read the brief summary set
forth below with respect to certain U.S. tax consequences arising upon exercise
of this Option and upon disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
(a) Exercising the Option. The Optionee may incur regular federal
income tax liability upon exercise of the Option. The Optionee will be treated
as having received compensation income (taxable at ordinary income tax rates)
equal to the excess, if any, of the fair market value (as quoted on the Nasdaq
National Market or the Nasdaq SmallCap Market or other stock exchange or as
determined by the Board in good faith) ("Fair Market Value") of the Exercised
Shares on the date of exercise over their aggregate Exercise Price. If the
Optionee is an employee or a former employee, the Company will be required to
withhold from his compensation or collect from the Optionee and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.
(b) Disposition of Shares. If the Optionee holds Shares acquired
upon exercise of the Option for at least one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes.
(c) Section 83(b) Election. Optionee hereby acknowledges that he
has been informed that, with respect to the exercise of the Option for
Restricted Shares, an election may be filed by the Optionee with the U.S.
Internal Revenue Service, within 30 days of the purchase of the Shares, electing
pursuant to Section 83(b) of the Code to be taxed currently on any difference
between the Option Exercise Price and Fair Market Value of the Shares on the
date of purchase. OPTIONEE ACKNOWLEDGES THAT IT IS OPTIONEE'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b) OF THE CODE, EVEN IF OPTIONEE REQUESTS THE COMPANY OR ITS REPRESENTATIVE
TO MAKE THIS FILING ON OPTIONEE'S BEHALF.
14. Entire Agreement; Governing Law. The Employment Agreement, by and
between Zindart Limited, a Bermuda corporation and Optionee, this Agreement, the
Exercise Notice and the Investment Representation Statement, all dated as of the
date hereof, constitute the entire agreement of the parties with respect to the
subject matter hereof and supersedes in its entirety all prior undertakings and
agreements of the Company and the Optionee with respect to the subject matter
hereof, and may not be modified except by means of a writing signed by the
Company and the Optionee. This agreement is governed by and construed in
accordance with the laws of the Hong Kong Special Administrative Region of the
People's Republic of China without regard to its principles of conflicts of law.
Should any provision of this Agreement be determined by a court of law to be
illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable.
15. Rights as a Stockholder. Neither the Optionee nor any of the
Optionee's successors in interest shall have any rights as a stockholder of the
Company with respect to any Shares subject to the Option until the date of
issuance of a stock certificate for such Shares. The Company shall issue or
cause to issue such stock certificate promptly after the Option is exercise in
whole or in part.
16. Authority of the Board. The Board shall have full authority to
interpret and construe this Stock Option Agreement. The determination of the
Board as to any such matter of interpretation or construction made in good faith
shall be final, binding and conclusive.
17. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING TO PROVIDE SERVICES AS AN EMPLOYEE OR CONSULTANT OF THE
COMPANY OR A SUBSIDIARY OF THE COMPANY IN ACCORDANCE WITH THE PROVISIONS OF THE
EMPLOYMENT AGREEMENT (AND NOT THROUGH THE ACT OF BEING HIRED OR BEING GRANTED AN
OPTION). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN
EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S OR SUCH SUBSIDIARY'S
RIGHT TO TERMINATE OPTIONEE'S
RELATIONSHIP AS AN EMPLOYEE OR CONSULTANT IN ACCORDANCE WITH THE EMPLOYMENT
AGREEMENT.
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted under and governed
by the terms and conditions of this Agreement. Optionee has reviewed this
Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Agreement and fully understands all provisions
of this Agreement. Optionee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations made by the Board in good faith upon any
questions relating to this Agreement. Optionee further agrees to notify the
Company upon any change in the residence address indicated below.
OPTIONEE: ZINDART LIMITED
a Hong Kong corporation
/s/ XXXXX X.X. XXXXXXXX By:/s/ XXXXXXXXX X.X. NGAN
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XXXXX X.X. XXXXXXXX Name: Alex X.X. Xxxx
Title: Chief Executive Officer
Residence Address:
EXHIBIT A-1
ZINDART LIMITED
EXERCISE NOTICE
Zindart Limited
Flat C&D, 25/F Block 1
Tai Ping Industrial Centre
57 Xxxx Xxx Road
Tai Po, New Territories
Hong Kong
Attention: Secretary
a. Exercise of Option. Effective as of today, ____________, ____, the
undersigned ("Optionee") hereby elects to exercise Optionee's option (the
"Option") to purchase _________ Ordinary Shares (the "Shares") of Zindart
Limited (the "Company") under and pursuant to the Stock Option Agreement dated
__________, 2000 (the "Agreement").
b. Delivery of Payment. Optionee herewith delivers to the Company the
full exercise price for the Shares.
c. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Agreement and agrees to abide by and be bound
by its terms and conditions.
d. Rights as Shareholder. Until the stock certificate evidencing such
Shares is issued to the Optionee (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Shares subject to the Option, notwithstanding the
exercise of the Option. Subject to Section 11 of the Agreement, the Company
shall issue (or cause to be issued) such stock certificate promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as provided in Section 12 of the Agreement.
Optionee shall enjoy rights as a shareholder until such time as Optionee
disposes of the Shares. Upon such exercise, Optionee shall have no further
rights as a holder of the Shares so purchased except the right to receive
payment for the Shares so purchased in accordance with the provisions of this
Exercise Notice, and Optionee
shall forthwith cause the certificate(s) evidencing the Shares so purchased to
be surrendered to the Company for transfer or cancellation.
e. Tax Consultation. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares (including any election made pursuant to Section 83(b)
of the U.S. Internal Revenue Code of 1986, as amended) and that Optionee is not
relying on the Company for any tax advice.
f. Restrictive Legends and Stop-Transfer Orders.
(1) Legends. Optionee understands and agrees that the Company may
cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by the Company or by Hong Kong or
U.S. state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES LAWS OF HONG KONG, THE U.S. SECURITIES ACT OF 1933
(THE "ACT") OR THE LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS IN COMPLIANCE THERE WITH.
(2) Stop-Transfer Notices. Optionee agrees that, in order to
ensure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(3) Refusal to Transfer. The Company shall not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Exercise Notice or (ii) to treat as
owner of
such Shares or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such Shares shall have been so transferred.
g. Successors and Assigns. The Company may assign any of its rights
under this Exercise Notice to single or multiple assignees, and this Exercise
Notice shall inure to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this Exercise Notice
shall be binding upon Optionee and his heirs, executors, administrators,
successors and assigns.
h. Interpretation. Any dispute regarding the interpretation of this
Exercise Notice shall be submitted by Optionee or by the Company forthwith to
the Board of Directors of the Company (the "Board") or the committee thereof
that administers the Agreement and/or Exercise Notice, which shall review such
dispute at its next regular meeting. The resolution of such a dispute by the
Board or committee shall be final and binding on the Company and on the
Optionee.
i. Governing Law; Severability. This Exercise Notice shall be governed
by and construed in accordance with the laws of the Hong Kong Special
Administrative Region of the People's Republic of China without regard to its
principles of conflict of laws. Should any provision of this Exercise Notice be
determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
j. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or
international courier service, prepaid, return receipt requested, and addressed
to the other party at its address as shown below beneath its signature, or to
such other address as such party may designate in writing from time to time to
the other party.
k. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Exercise Notice.
l. Entire Agreement. The Agreement is incorporated herein by reference.
The Agreement, this Exercise Notice, and the Investment Representation Statement
constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: ZINDART LIMITED
By: By:
[]
Its:
Address:
EXHIBIT A-2
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: XXXXX X.X. XXXXXXXX
COMPANY: ZINDART LIMITED
SECURITY: ORDINARY SHARES
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the
under signed Optionee represents to the Company the following:
1. Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the U.S. Securities Act of 1933, as amended (the
"Securities Act").
2. Optionee acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Optionee's
investment intent as expressed herein. In this connection, Optionee understands
that, in the view of the Securities and Exchange Commission, the statutory basis
for such exemption may be unavailable if Optionee's representation was
predicated solely upon a present intention to hold these Securities for the
minimum capital gains period specified under tax statutes, for a deferred sale,
for or until an increase or decrease in the market price of the Securities, or
for a period of one year or any other fixed period in the future. Optionee
further understands that the Securities must be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available. Optionee further acknowledges and understands that
the Company is under no obligation to register the Securities. Optionee under
stands that the certificate evidencing the Securities will be imprinted with a
legend which prohibits the transfer of the Securities unless they are registered
or such registration is not required in the opinion of counsel satisfactory to
the Company and any other legend required under applicable securities laws.
3. Optionee is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions. Rule 701 provides that if the issuer qualifies under Rule
701 at the time of the grant of the option to the Optionee, the exercise will be
exempt from registration under the Securities Act. In the event the Company
becomes subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), ninety (90)
days thereafter (or such longer period as any market stand-off agreement may
require) the Securities exempt under Rule 701 may be resold, subject to the
satisfaction of certain of the conditions specified by Rule 144, including: (1)
the resale being made through a broker in an unsolicited "broker's transaction"
or in transactions directly with a market maker (as said term is defined under
the Exchange Act); and, in the case of an affiliate, (2) the availability of
certain public information about the Company, (3) the amount of Securities being
sold during any three month period not exceeding the limitations specified in
Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the
time of grant of the option, then the Securities may be resold in certain
limited circumstances subject to the provisions of Rule 144, which requires the
resale to occur not less than one year after the later of the date the
Securities were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of Rule 144; and, in the case of
acquisition of the Securities by an affiliate, or by a non- affiliate who
subsequently holds the Securities less than two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of the paragraph
immediately above.
4. Optionee further understands that in the event all of the applicable
requirements of Rule 701 or 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 144 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk. Optionee understands that no assurances can be given that any
such other registration exemption will be available in such event.
Signature of Optionee:
Date: ,
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