EXHIBIT 4.6
FORM OF
MASTERING, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made to be effective on ____________, between Mastering,
Inc., a Delaware corporation (the "Corporation"), and the undersigned
"Participant," an executive or independent contractor of the Corporation:
WITNESSETH:
WHEREAS, the Corporation has adopted the 1995 Executive Stock Option Plan
of Mastering, Inc. (the "Plan"), a copy of which is attached hereto as Exhibit A
and is hereby incorporated by reference with the same effect as if fully recited
herein;
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 Corporation hereby grants to Participant the
Option (this term, as well as all other capitalized terms used but not otherwise
defined herein shall have the meaning assigned in the Plan) to purchase all or
any part of the number of shares of Common Stock of the Corporation set forth on
the signature page hereto, on the terms and conditions set forth in the Plan and
herein, such number being subject to adjustment in accordance with the Plan (the
"Option Shares"). This Option shall be a non-qualified stock option within the
meaning of the Internal Revenue Code of 1986, as amended, or any successor
thereto.
2. Purchase Price. The purchase price of the Option Shares shall be set
forth on the signature page herein.
3. Term of Option. The term of the Option (the "Option Term") shall be
for a period of ten (10) years from the date hereof, subject to earlier
termination as provided in the Plan. In no event shall the Option be exercised
after the Option Term.
4. Exercise of Option. Within the foregoing limitation provided herein
and in the Plan, the Option shall vest and become exercisable as provided in
this Section 4. Participant shall exercise his or her right to purchase Option
Shares by delivering written notice to the Corporation in accordance with
Section 5 hereof, together with this Agreement and payment for such shares in
accordance with Section 11 of the Plan.
(a) Vesting of Option. The Option shall vest and become exercisable
in accordance with the following schedule: 25% of the Option Shares shall vest
on the first anniversary
of the Issue Date; 25% of the Option Shares shall vest on the second anniversary
of the Issue Date; 25% of the Option Shares shall vest on the third anniversary
of the Issue Date; and the remaining 25% of the Option Shares shall vest on the
fourth Anniversary of the Issue Date.
(b) Required Registrations and Consents. If at any time the Committee
shall determine, in its sole discretion, that (i) the listing, registration, or
qualification of the Option Shares upon any securities exchange or under any
state or federal law or (ii) the consent or approval of any governmental
regulatory body, or (iii) obtaining an investment intent representation or other
undertaking from Participant is necessary or desirable as a condition of, or in
connection with, the exercise of the Option hereunder, the Option may not be
exercised in whole or in part unless and until such listing, registration,
qualification, consent, approval, representation or undertaking shall have been
effected or obtained free of any conditions not acceptable by the Committee.
5. Method of Exercising Option.
(a) Subject to the terms and conditions of this Agreement and the
Plan, the Option must be exercised by delivering notice to the Corporation,
which notice must be in writing and personally delivered or sent by registered
or certified mail, return receipt requested, to the Secretary of the Corporation
at Mastering, Inc., 0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000 (or to the address of the principal office of the Corporation, if
different from the address set forth herein). The notice shall be deemed to be
made when the Corporation or its successor in interest receives the letter or
within three (3) days after it is sent by certified or registered mail, return
receipt requested, wherever is earlier.
(b) Such notice shall state the election to exercise the Option, the
number of Option Shares in respect of which it is being exercised, and the name
or names of the person or persons in whose name or names the stock certificates
are to be issued. The notice shall be signed by the person or persons
exercising the Option and shall include each such person's address for receipt
of a certificate representing such shares. The notice shall be accompanied by a
photocopy of this Agreement and payment of the full exercise price of such
shares.
(c) In the event the Option shall be exercised by any person or
persons other than Participant, such notice shall be accompanied by appropriate
proof, as determined by the Committee in its sole discretion, of the right of
such person or persons to exercise the Option.
(d) All shares that shall be purchased upon the exercise of the
Option, as provided herein, shall be fully paid and non-assessable.
6. Interpretation of Agreement and Plan.
(a) All determinations and interpretations made by the Committee,with
regard to any questions arising hereunder or under the Plan, shall be binding
and conclusive on Participant, and his or her successors, legal representatives
and beneficiaries.
(b) The Option is subject to:
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(i) All terms and conditions of the Plan, as it is now or
hereafter in effect; and
(ii) All terms and conditions of this Agreement, now in effect or
hereafter amended at the sole discretion of the Committee,
which conform with the terms and conditions of the Plan, as
it is now or hereafter in effect.
(c) Participant acknowledges receipt of a copy of the Plan, represents
and warrants that he or she has read the Plan and agrees that the Option shall
be subject to all of the terms and conditions of this Agreement and the Plan, as
it is now or hereafter in effect.
7. Binding on Successors and Assigns; Non-transferability. This
Agreement shall bind and inure to the benefit of the successors and assigns of
the Corporation. Except to the extent permitted under the Plan, as amended from
time to time, the rights of Participant under this Agreement shall not be
transferable and all Options may be exercised during the lifetime of Participant
only by Participant.
8. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original and both of which constitute one and
the same document.
9. Assignment. This Agreement shall not be assignable by Participant or
his executors, administrators, successors and heirs.
10. Section Headings. The Section headings of this Agreement are inserted
for convenience of reference only and shall not be deemed to be a part thereof
or used in the construction or interpretation thereof.
11. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without violating the remainder of
this Agreement.
12. Governing Law. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of Delaware.
13. Final Agreement. This Agreement constitutes the final agreement of
the parties concerning the matters referred to herein and supersedes all prior
agreements and understandings.
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IN WITNESS WHEREOF, the Corporation and Participant have executed this
Stock Option Agreement as of the day and year below written.
MASTERING, INC.
By: _______________________________
Its: _______________________________
PARTICIPANT:
Number of Option Shares:
Issue Date:
Option Price Per Share:
PARTICIPANT ACKNOWLEDGMENT:
______________________
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