Exhibit 10.4
EXHIBIT "A"
TRUEVISION INTERNATIONAL, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
TrueVision International, Inc., a Delaware corporation ("Company"),
hereby grants to Xxxxx X. Xxxxxxx ("Optionee"), an option ("Option") to purchase
a total of 83,333 shares of the common stock of the Company ("Shares"), at the
price set forth herein, and in all respects subject to the terms, definitions
and provisions of this Option Agreement and the Company's 1998 Stock Option Plan
("Plan"), which is incorporated herein by reference.
1. NATURE OF THE OPTION. The Option is intended to be a non-statutory
stock option and NOT an incentive stock option within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended ("Code").
2. OPTION PRICE. The Option Price is $4.50 for each Share.
3. VESTING AND EXERCISE OF OPTION. The Option shall vest and become
exercisable during its term in accordance with the following provisions and in
accordance with the Plan:
(a) VESTING AND RIGHT TO EXERCISE.
(i) The Option shall vest thirty-six (36) months from the
date of this Option Agreement and become fully exercisable at that time with
respect to all 83,333 of the Shares subject to the Option. Subject to the
provisions of subparagraphs (ii) and (iii) below, the Optionee can exercise any
portion of the Option that has vested until the expiration of the Option term.
(ii) In the event of the Optionee's death or disability,
the exercisability of the Option shall be governed by the relevant provisions of
the Plan.
(iii) The Option may not be exercised for fractional shares
or for less than one thousand (1,000) Shares.
(b) METHOD OF EXERCISE. In order to exercise any portion of
this Option, the Optionee shall notify the Company in writing of the election to
exercise the Option, the number of Shares in respect of which the Option is
being exercised and if applicable, the Consent of Spouse forms which are
attached hereto. The notice of election to exercise all or any portion of this
Option must be accompanied by payment in full of the aggregate purchase price of
the Shares to be purchased. The certificate or certificates for Shares as to
which the Option has been exercised shall be registered in the name of the
Optionee.
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(c) RESTRICTIONS ON EXERCISE. This Option may not be exercised
if the issuance of the Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any applicable
federal or state securities law or any other law or regulation. Furthermore, the
method and manner of payment of the Option Price will be subject to the rules
under Part 207 of Title 12 of the code of Federal Regulations ("Regulation G")
as promulgated by the Federal Reserve Board if such rules apply to the Company
at the date of exercise. As a condition to the exercise of this Option, the
Company may require the Optionee to make any representation or warranty to the
Company at the time of exercise of the Option as in the opinion of legal counsel
for the Company may be required by any applicable law or regulation, including
the execution and delivery of an appropriate representation statement.
Accordingly, the stock certificates for the Shares issued upon exercise of this
Option may bear appropriate legends restricting transfer.
4. NON-TRANSFERABILITY OF OPTION. This Option may be exercised during
the lifetime of the Optionee only by the Optionee and, may not be transferred in
any manner other than by will or by the laws of descent and distribution. The
terms of this Option shall be binding upon the executors, administrators, heirs
and successors of the Optionee.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) certified or bank cashier's check; or
(c) in the event there exists a public market for the Company's
common stock on the date of exercise, by surrender of Shares of the Company's
common stock, provided that if such Shares were acquired upon exercise of an
incentive stock option, the Optionee must have first satisfied the holding
period requirements under Section 422(a)(1) of the Code. In this case payment
shall be made as follows:
(i) In addition to the execution and delivery of any other
documents that may be required for the exercise of this Option, Optionee shall
deliver to the secretary of the Company a written notice which shall set forth
the portion of the purchase price by the average of the last reported bid and
asked prices per Share of common stock of the Company, as reported in THE WALL
STREET JOURNAL (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation (NASDAQ) System or, in the
event the common stock is listed on a national securities exchange, or on the
NASDAQ National Market System (or any successor national market system), the
closing price of common stock of the Company on such exchange as reported in THE
WALL STREET JOURNAL, for the day on which
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the notice of exercise is sent or delivered;
(ii) Fractional shares shall be disregarded and the Optionee
shall pay in cash an amount equal to such fraction multiplied by the price
determined under subparagraph (i) above;
(iii) The written notice shall be accompanied by a duly
endorsed blank stock power with respect to the number of Shares set forth in the
notice, and the certificate(s) representing said Shares shall be delivered to
the Company at its principal offices within five (5) working days from the date
of the notice of exercise;
(iv) The Optionee hereby authorizes and directs the
secretary or stock transfer agent of the Company to transfer so many of the
Shares represented by such certificate(s) as are necessary to pay the purchase
price in accordance with the provisions herein;
(v) If any such transfer of Shares requires the consent of
the California Commissioner of Corporations or of some other agency under the
securities laws of any other state, or an opinion of counsel for the Company or
Optionee that such transfer may be effected under applicable federal and state
securities laws, the time periods specified herein shall be extended for such
periods as the necessary request for consent to transfer is pending before said
Commissioner or other agency, or until counsel renders such an opinion, as the
case may be. All parties agree to cooperate in making such request for transfer,
or in obtaining such opinion of counsel, and no transfer shall be effected
without such consent or opinion if required by law; and
(vi) Notwithstanding any other provision herein, the
Optionee shall only be permitted to pay the purchase price with Shares of the
Company's common stock owned by him as of the exercise date in the manner and
within the time periods allowed under 17 CFR Section 240.16b-3 promulgated under
the Securities Exchange Act of 1934 as such regulation is presently constituted,
as it is amended from time to time, and as it is interpreted now or hereafter by
the United States Securities and Exchange Commission.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. The number of
Shares covered by this Option shall be adjusted in accordance with the
provisions of the Plan in the event of changes in the capitalization or
organization of the Company, or if the Company is a party to a merger or other
corporate reorganization.
7. TERM OF OPTION. This Option may not be exercised more than ten (10)
years and one (1) day from the date of grant of this Option, as set forth below,
and may be exercised during such term only in accordance with the Plan and the
terms of this Option.
8. VOTING RIGHTS. The Optionee hereby agrees that any Shares acquired
upon the exercise of this Option shall be subject to a restriction that
prohibits the Optionee from voting such Shares for a
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period of two (2) years from the date of exercise of the Option. This provision
restricting the Optionee's voting rights with respect to the Shares shall be
void and of no effect at such time as the Optionee may sell or transfer the
Shares during the term of the voting restriction.
9. INCOME TAX WITHHOLDING. The Optionee authorizes the Company to
withhold in accordance with applicable law from any compensation payable to him
or her any taxes required to be withheld by federal, state or local laws as a
result of the exercise of this Option. Furthermore, in the event of any
determination that the Company has failed to withhold a sum sufficient to pay
all withholding taxes due in connection with the exercise of this Option, the
Optionee agrees to pay the Company the amount of any such deficiency in cash
within five (5) days after receiving a written demand from the Company to do so,
whether or not Optionee is an employee of the Company at that time.
DATE OF GRANT: December 13, 1999
By:
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Xxxx X. Xxxxx, Chief Executive Officer
The Optionee acknowledges receipt of a copy of the Plan and the
exhibits referred to therein and represents that he or she is familiar with the
terms and provisions thereof, and hereby accepts this Option subject to all of
the terms and provisions thereof. The Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the committee
upon any questions arising under the Plan.
Dated: December ____, 1999
OPTIONEE:
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Xxxxx X. Xxxxxxx
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CONSENT OF SPOUSE
I, ____________________________________________, spouse of the
Optionee who executed the foregoing Agreement, hereby agree that my spouse's
interest in the Shares of common stock subject to said Agreement shall be
irrevocably bound by the Agreement's terms. I further agree that my community
property interest in such Shares, if any, shall similarly be bound by said
Agreement and that such consent is binding upon my executors, administrators,
heirs and assigns. I agree to execute and deliver such documents as may be
necessary to carry out the intent of said Agreement and this consent.
Dated: December ___, 1999
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