EXHIBIT 10.8
SEMELE GROUP, INC.
DIRECTOR STOCK OPTION AGREEMENT
DIRECTOR OPTION GRANT PROGRAM
THIS OPTION AGREEMENT is made as of the 30th day of December, 1997 by and
between Semele Group, Inc. (the "Company"), and Xxxxxx X. Xxxxxxxx (the
"Optionee"). All definitions contained in the Semele Group, Inc. Amended 1994
Executive and Director Stock Option Plan (the "Plan") are hereby incorporated by
reference and shall have the same meanings in this Agreement as are contained in
the Plan.
WHEREAS, the Optionee is a director of the Company, and by affording an
opportunity to purchase Shares, the Company desires to provide additional
motivation to the Optionee to achieve long-term growth in stockholder equity;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth, and other good and valuable consideration, the Company
and Optionee agree as follows:
1. Grant of Option. Subject to the terms and conditions of the Plan and
this Option Agreement, the Company hereby grants to the Optionee the option to
purchase 50,000 shares of the Company's Common Stock (the "Shares"). The Options
granted hereunder are designated as nonqualified stock options and the Options
are not incentive stock options as described in Section 422 of the Internal
Revenue Code of 1986, as may be amended (the "Code").
2. Purchase Price. The price per share which Shares may be acquired on
exercise shall be $0.925, which is not less than one hundred percent (100%) of
the Fair Market Value of a share of the Company's Common Stock on the date
hereof.
3. Exercise Schedule. Subject to becoming exercisable earlier as provided
in the Plan and subject to the provisions of Section 4 of this Agreement, the
Options granted hereunder shall vest and be exercisable in installments as
follows: (i) to the extent of 50.0% of the number of Shares commencing on the
first anniversary of the date of grant; and (ii) to the extent of 50.0% of the
number of Shares commencing on the second anniversary of the date of grant;
provided, however, that if the Optionee shall die or become permanently or
totally disabled or retire in accordance with the Company's retirement
procedures, then all Options granted hereunder shall become immediately
exercisable.
4. Period and Cancellation. The exercise period of each Option shall
terminate ten years and one day from the date of grant, unless sooner terminated
as provided in this Option Agreement or under the Plan. The exercise period of
each Option shall also terminate if the Optionee ceases to be a director of the
Company except if:
(i) the Optionee ceases to be a director of the Company due to: (a)
the death or permanent and total disability of the Optionee; or (b) the
expiration of the director's term in office after the director attains his
75th birthday; then any unexercised Options to acquire Shares will become
exercisable, as of the date of death, disability or retirement and may be
exercised by the Optionee, the Optionee's legal representative or the
Optionee's beneficiary(ies), as the case may be, at any time within one
year in the case of (a) and 90 days in the case of (b);
(ii) the Optionee ceases to be a director of the Company due to any
reason other than as described in subsection (i) above, any unexercised
Options which have been vested pursuant to the terms of this Option
Agreement and the Plan on or before the last date the Optionee is a
director of the Company must be exercised by the Optionee, his legal
representative or his beneficiary(ies) within 30 days after the last date
the Optionee is a director of the Company; and
(iii) the Optionee ceases to be a director of the Company due to a
reason described in subsection (i) above (other than death) and the
Optionee dies prior to the expiration of the applicable exercise period
set forth therein, the Options may be exercised by his legal
representative or his beneficiary(ies) within the remainder of the period
that would have been applicable to the Optionee prior to the Optionee's
death.
Termination of the exercise period shall result in termination and
cancellation of the Options. For purposes of this Option Agreement, "disability"
of the Optionee shall be deemed to have occurred if the Optionee has suffered
permanent and total physical or mental illness, injury or infirmity of such a
nature, degree or effect as to render the Optionee substantially unable to serve
as a director. The remaining members of the Board shall determine, according to
the facts then available to them, whether and when disability has occurred, and
the date of disability shall be the date of any such determination.
5. Method of Option Exercise. The Optionee shall exercise Options by
delivering written notice of intent to exercise to the Company's Chief Operating
Officer at the Company's principal office located at One Xxxxxxxxxx Xxxxx, 0xx
Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 (or the office which is the
successor main office or which is otherwise designated as the office to which
notice is to be given as the Board may direct). Each notice shall: (i) state the
Optionee's election to exercise the Option and the number of Shares in respect
of which the Option is being exercised; (ii) be signed by the person or persons
exercising the Option; (iii) be accompanied by proof, reasonably satisfactory to
the Company's Chief Operating Officer, of the right of that person or persons to
exercise the Option if the Option is being exercised by any person or persons
other than the Optionee; and (iv) be accompanied by payment, in cash or Shares.
An Option shall not have been exercised unless all the preceding provisions of
this paragraph shall have been complied with and, for all purposes of this
Option Agreement, the date of the exercise of the Option with respect to any
particular Shares shall be the date on which the notice, proof (if required) and
payment shall all have been received by the Chief Operating Officer. The
certificate or certificates for the Shares as to which the Option shall have
been so exercised shall be registered in the name of the person or persons so
exercising the Option and shall be delivered to or upon the written order of the
person or persons exercising the Option as soon as practicable after receipt by
the Chief Operating Officer of the notice, proof (if required)
and payment. Delivery of the certificate shall be made at the place designated
by the Optionee in the written notice of intent to exercise.
6. No Rights as Stockholder. The Optionee shall have no rights as a
stockholder with respect to Shares covered by the Option until the date of
issuance of a stock certificate for the Shares; no adjustment for cash
dividends, or otherwise, shall be made if the record date therefor is prior to
the date of exercise of the Option.
7. Requirements of Law. The Company may issue or deliver certificates for
Shares prior to: (i) listing of the Shares on any stock exchange on which the
Shares may then be listed; or (ii) registering or qualifying the Shares under
federal or state law; provided, however, the Company shall not issue or deliver
certificates for Shares prior to the Optionee tendering to the Company those
documents or payments as the Board may deem necessary to satisfy any applicable
withholding obligation for the Company to obtain a deduction on its federal,
state or local tax return with respect to the exercise of an Option. If the
disposition of Shares acquired on exercise of any Option 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 registration, (i) the
acquired Shares shall be restricted against transfer to the extent required by
the Securities Act or regulations thereunder; (ii) on demand by the Board, the
individual exercising an Option shall state in writing, as a condition precedent
to each exercise, that the Optionee is acquiring the Common Stock for investment
only and not for resale or with a view to distribution; and (iii) any
certificates for Shares issued under this Section 7 shall bear the following or
similar legend:
The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the securities
laws of any state and may not be sold or transferred except upon
registration or receipt by the Company of an opinion of counsel
satisfactory to the Company, in form and substance satisfactory to the
Company, that registration is not required for sale or transfer.
8. Cause to be Registered Under the Act. The Board may, in its discretion,
register the Shares acquired by the Optionee under the Securities Act. Further,
if at any time the Company proposes to register any of its equity securities
under the Securities Act, whether or not for its own account, and there exist
Shares which cannot be sold under an existing registration statement or Rule
144(k) (or any similar provision then enforced), then the Company shall give
written notice of the proposed filing to the holder of the Shares at least 20
days before the anticipated filing date. This notice shall offer the holder the
opportunity to register the Shares. The Company shall register all Shares with
respect to which the Company has received a written request for inclusion
therein within 15 business days after notice has been duly given to the
applicable holder. The holder of restricted Shares shall be permitted to
withdraw all or any part of the restricted Shares from this registration at any
time prior to the effective date of the registration.
9. Non-transferability. The Option shall not be assigned, transferred
(except as herein provided), pledged, or hypothecated in any way (whether by
operation of law or otherwise), other than by will or the laws of descent and
distribution. The Option is exercisable during an Optionee's lifetime only by
the Optionee or the appointed guardian or legal
representative of the Optionee, and no Option shall be subject to execution,
attachment, or similar process. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition contrary to the provisions hereof, and the
levy of any attachment or similar process upon the Option shall be null and void
and without effect. The Company shall have the right to terminate the Option
upon any assignment, transfer, pledge, hypothecation, other disposition of the
Option, or levy of attachment or similar process, by notice to that effect to
the person then entitled to exercise the Option; provided, however, that
termination of the Option hereunder shall not prejudice any rights or remedies
which the Optionee or the Company may have under this Option Agreement or
otherwise.
10. Changes in Company's Capital Structure. The existence of the Option
shall not affect in any way the right or authority of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company's capital structure or
its business, or any merger or consolidation of the Company, or any issue of
bonds, debentures, preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
11. Board Action Final. Any dispute or disagreement which shall arise
under, as a result of, or in any way relate to the interpretation or
construction of this Option Agreement or the Plan shall be determined by the
Board. Any such determination made hereunder shall be final, binding, and
conclusive for all purposes.
12. Plan Controlling. This Option Agreement is executed pursuant to the
provisions of the Plan and is subject to all of the provisions of the Plan which
shall be controlling.
13. Successors and Assigns. This Option Agreement shall inure to the
benefit of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Optionee or his beneficiary and all rights granted
to the Company hereunder or as stipulated in the Plan shall be binding upon the
Optionee's or the beneficiary's heirs, legal representatives and successors.
14. Choice of Law. This Option Agreement shall be construed and enforced
according to the internal laws of the State of Delaware.
IN WITNESS WHEREOF, Company has caused this Option Agreement to be
executed by its duly authorized officer, and the Optionee has hereunto set his
hand and seal, as of the day and year first above written.
SEMELE GROUP, INC.
By:___________________________________
Its:__________________________________
______________________________________
(Optionee)
