STOCK OPTION AGREEMENT
SYNERGISTIC HOLDINGS CORP.
AGREEMENT made as of this _____ day of September, 1996 (the
"Grant Date") among Synergistic Holdings Corp. (the "Company"), a Delaware
corporation, having a principal place of business at 000 Xxxxx Xxxxxx, Xxx
Xxxxxx, Xxxx 00000 and the Xxxxxxxxx Xxxxx Family Limited Partnership, Xxxxxxxxx
Xxxxx, Pershing Sun, Xxxxxxx Xxx, Xxxxxxxx Sun, Xxxxx Xxxxx-Xxxxxxxx, Xxxxxxxx
Xxxxxxxxxxx and Xxxxxxx Xxxxxxxxxxx (hereinafter collectively, the "Xxxxx Group"
or the "Grantee").
WHEREAS, the Company desires to grant to the Grantee an Stock
Option to purchase shares of its common stock, par value $.01 per share (the
"Shares"), pursuant to the terms thereof;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Grantee
the right and option to purchase 179,333 Shares (the "Option") on the terms and
conditions and subject to all the limitations set forth herein, provided,
however, that in the event the Company does not have sufficient authorized but
unissued Shares, the Grantee shall have the right and option to purchase such
number of Series B Convertible Preferred Stock of the Company, par value $.01
per share, equal to the number of shares determined by dividing the number of
Shares to be purchased hereunder by 2,059.106. The Option provided for
hereunder may be allocated among the Xxxxx Group in such proportion as they may
direct in writing.
2. Exercise Price. The exercise price of the Shares covered by
the Option shall be $2.125 per share (the "Option Price").
3. Exercise of Option. The Option granted hereby shall be
exercisable (i) as to 20% of the Shares covered hereby, on a cumulative basis,
on November 21, 1996 (the vesting date for the 172,300 employee stock options)
and on the first, second, third and fourth anniversary of such date, or (ii)
pursuant to any other vesting schedule that governs or may govern the exercise
of the 172,300 employee stock options.
4. Term of Option. The Option shall terminate on November 21,
2002, but shall be subject to earlier termination as provided herein.
If the Grantee is an employee of the Company and ceases to be
employed by the Company for any reason other than death, termination for cause
or voluntary termination without the consent of the Company, the Option may be
exercised within thirty (30) days after the date the Grantee ceases to be an
employee, but may not be exercised thereafter. In such event, the Option shall
be exercisable only to the extent that the right to purchase Shares has accrued
and is in effect at the date of such cessation of employment.
If the Grantee is an employee of the Company and becomes
disabled (as determined by the Board of Directors of the Company and as to the
fact and date of which the Grantee is
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notified by the Board in writing), the Option shall be exercisable within ninety
(90) days after the date of such disability or, if earlier, the term originally
prescribed by this Agreement. In such event, the Option shall be exercisable
only to the extent that the right to purchase the Shares hereunder has accrued
on the date the Grantee becomes disabled and is in effect as of such
determination date.
If the Grantee is an employee of the Company and such
employment is terminated for cause or is voluntarily terminated without the
consent of the Company, the Option shall terminate immediately.
If the Grantee is an employee of the Company, then, in the
event of the death of the Grantee while an employee of the Company or within
thirty (30) days after the termination of employment (other than termination for
cause or without consent of the Company), the Option shall be exercisable to the
extent exercisable but not exercised as of the date of death and in such event,
the Option must be exercised, if at all, within one hundred and eighty (180)
days after the date of death of the Grantee or, if earlier, within the
originally prescribed term of the Option.
5. Non-Assignability. The Option shall not be trans- ferable
by the Grantee otherwise than by will or by the laws of descent and distribution
and shall be exercisable, during the Grantee's lifetime, only by the Grantee;
provided, that the Option may be allocated (and replacement options granted) to
individuals and/or entities comprising the Xxxxx Group, upon
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written request, in such proportional amounts as are set forth in Annex A
attached hereto, and any such replacement options may be exercised by the
grantee pursuant to the terms hereof. Except as provided for herein, the Option
shall not be assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted transfer, assignment, pledge, hypothecation or
other disposition of the Option or of any rights granted hereunder contrary to
the provisions of this Section 5, or the levy of any attachment or similar
process upon the Option or such right, shall be null and void.
6. Exercise of Option and Issue of Shares. The Option may be
exercised in whole or in part (to the extent that it is exercisable in
accordance with its terms) by giving written notice to the Company, together
with the tender of the Option Price. Such written notice shall be signed by the
person exercising the Option, shall state the number of Shares with respect to
which the Option is being exercised, shall contain any warranty required by
Section 7 below and shall otherwise comply with the terms and conditions of this
Agreement. The Company shall pay all original issue taxes with respect to the
issue of the Shares pursuant hereto and all other fees and expenses necessarily
incurred by the Company in connection herewith. Except as specifically set forth
herein, the holder acknowledges that any income or other taxes due from him or
her with respect to this Option or the Shares issuable pursuant to this Option
shall be the responsibility of the holder. The holder of this
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Option shall have rights as a shareholder only with respect to any Shares
covered by the Option after due exercise of the Option and tender of the full
Option Price for the Shares being purchased pursuant to such exercise.
7. Purchase for Investment. Unless the offering and sale of
the Shares to be issued upon the particular exercise of the Option shall have
been effectively registered under the Securities Act of 1933, as now in force or
hereafter amended, or any successor legislation (the "Act"), the Company shall
be under no obligation to issue the Shares covered by such exercise unless and
until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall
warrant to the Company, at the time of such exercise, that such person(s) are
acquiring such Shares for his or her own account, for investment and not with a
view to, or for sale in connection with, the distribution of any such Shares, in
which event the person(s) acquiring such Shares shall be bound by the provisions
of the following legend which shall be endorsed upon the certificate(s)
evidencing their option Shares issued pursuant to such exercise:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). Such shares may not be sold, transferred or otherwise
disposed of unless they have first been registered under the
Act or, unless, in the opinion of counsel satisfactory to the
Company's counsel, such registration is not required."
(b) The Company shall have received an opinion of its
counsel that the Shares may be issued upon such particular exercise in
compliance with the Act without registration there-
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under. Without limiting the generality of the foregoing, the Company may delay
issuance of the Shares until completion of any action or obtaining of any
consent, which the Company deems necessary under any applicable law (including
without limitation state securities or "blue sky" laws).
8. Notices. Any notices required or permitted by the
terms of this Agreement shall be given by registered or certified mail, return
receipt requested, addressed as follows:
To the Company: Synergistic Holdings Corp.
000 0xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
To the Grantee: The Xxxxx Group
00 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given when
mailed in accordance with the foregoing provisions. Either party hereto may
change the address of which notices shall be given by providing the other party
hereto with written notice of such change.
9. Governing Law. This Agreement shall be construed
and enforced in accordance with the law of the State of New York (applicable to
contracts to be performed wholly within such state).
10. Benefit of Agreement. This Agreement shall be for
the benefit of and shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by a duly authorized officer of the Company, and the Grantee has
hereunto set his or her hand, all as of the day and year first above written.
SYNERGISTIC HOLDING CORP.
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx
/s/ Pershing Sun
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Pershing Sun
/s/ Xxxxxxx Xxx
--------------------------------
Xxxxxxx Xxx
/s/ Xxxxxxxx Sun
--------------------------------
Xxxxxxxx Sun
/s/ Xxxxx Xxxxx-Xxxxxxxx
--------------------------------
Xxxxx Xxxxx-Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxxxx
/s/ Xxxxxxxx Xxxxxxxxxxx
--------------------------------
Xxxxxxxx Xxxxxxxxxxx
THE XXXXXXXXX XXXXX FAMILY
LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: General Partner
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