EXHIBIT 10.11
OUTDOOR CHANNEL HOLDINGS, INC.
NON-STATUTORY STOCK OPTION PLAN AND AGREEMENT
---------------------------------------------
THIS NON-STATUTORY STOCK OPTION PLAN AND AGREEMENT (the "Agreement") by
and between OUTDOOR CHANNEL HOLDINGS, INC., an Alaska corporation (the
"Company"), and XXXXXXX X. XXXX ("Employee") is entered into effective as of the
13th day of November 2003.
RECITALS
--------
1. Pursuant to that certain offer letter dated October 13, 2003 by and
between the Company and Employee (the "Letter"), and as an inducement to
Employee to enter into an employment relationship with the Company, the Company
has agreed to grant Employee non-statutory options to purchase an aggregate of
up to 175,000 shares of the Company's common stock;
2. The Board of Directors of the Company has approved the grant of
options under this Agreement, subject to approval by the stockholders of the
Company; and
3. The parties desire to set forth the terms and conditions governing
the options granted hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT. The Company hereby grants to Employee the right to purchase
up to 175,000 shares of the Company's common stock at a price equal to $29.00
per share, on the terms and conditions set forth herein. The options granted
hereunder are not intended to qualify as incentive stock options under Section
422 of the Internal Revenue Code, as amended, and are not granted pursuant to
any Company stock option plan. Employee agrees that Employee and any other
person who may be entitled hereunder to exercise these options shall be bound by
all terms and conditions of this Agreement.
2. VESTING.
(a) SCHEDULE. Subject to all of the terms contained in this
Agreement, except as specifically set forth in Section 3 hereof and provided
that Employee continues to provide "Continuous Service" (as defined in Section 3
below) to the Company at such times, the options granted herein shall vest and
become exercisable on the dates and in the amounts as set forth on EXHIBIT A
hereto.
(b) CHANGE OF CONTROL. Upon a Change of Control (as such term
is defined below), unless otherwise determined by the Board of Directors of the
Company (the "Board"), then the vesting of all options granted pursuant to this
Agreement shall accelerate, regardless of whether the vesting requirements set
forth herein have been satisfied, and Employee shall have the right, for a
period of ninety (90) days following the termination of Employee's employment,
to exercise this option with respect to all shares, to the extent not previously
exercised. This Agreement and all rights granted hereunder shall terminate and
otherwise be extinguished on the 91st day following such termination. "Change in
Control" shall mean (i) the acquisition, directly or indirectly, by any person
or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended) of the beneficial ownership of more than fifty percent
(50%) of the outstanding securities of the Company, other than the Company or
any person or group who as of the date of this Agreement is or are director(s)
or officer(s) of the Company (including any affiliates of such officer(s) or
director(s) and trusts established by such persons); (ii) a merger or
consolidation in which the Company is not the surviving entity, except for a
transaction to change the state in which the Company is incorporated; (iii) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company; (iv) a complete liquidation or dissolution of the Company; or (v)
any reverse merger in which the Company is the surviving entity but in which
securities possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately prior to
such merger.
3. TERMINATION OF EMPLOYMENT. Employee's right to exercise this option
shall terminate upon the first to occur of the following:
(a) the fifth (5th) anniversary date of the date of this
Agreement;
(b) the expiration of one year from the date of termination of
Employee's Continuous Service if such termination occurs for any reason other
than voluntary resignation or termination for cause, but only to the extent that
this option was exercisable on the date of termination of such service; or
(c) the expiration of six (6) months from the date of
termination of Employee's Continuous Service if Employee's Continuous Service is
terminated for cause or if Employee's Continuous Service is terminated due to
voluntary resignation, but only to the extent that this option was exercisable
on the date of termination of such service.
As used herein, the term "Continuous Service" means (i)
employment by either the Company or any parent or subsidiary corporation of the
Company, or by a corporation or a parent or subsidiary of a corporation issuing
or assuming a stock option in a transaction to which Section 424(a) of the
Internal Revenue Code applies, which is uninterrupted except for vacations,
illness, or leaves of absence which are approved in writing by the Company or
any of such other employer corporations, if applicable, (ii) service as a member
of the Board of Directors of the Company until Employee resigns, is removed from
office, or Employee's term of office expires and he or she is not reelected, or
(iii) so long as Employee is engaged as a consultant or service provider to the
Company or other corporation referred to in clause (i) above.
4. EXERCISE. Subject to approval of this Agreement by the Company's
shareholders pursuant to applicable Alaska law, this option may be exercised in
whole or in part on the terms and conditions contained herein by Employee giving
the Company ten (10) days' prior written notice of Employee's election to
exercise, which notice shall specify the number of shares to be purchased and
the price to be paid therefore. The purchase price shall be payable in full in
-0-
Xxxxxx Xxxxxx dollars in one or a combination of the following methods: (i) in
cash or check payable to the order of the Company; (ii) in accordance with a
cashless exercise program acceptable to the Company pursuant to which Employee
concurrently provides irrevocable instructions (A) to such Employee's broker or
dealer to effect the immediate sale of the purchased shares and remit to the
Company, out of the sale proceeds available on the settlement date, sufficient
funds to cover the purchase price plus all applicable income and employment
taxes required to be withheld by the Company by reason of such exercise and (B)
to the Company to deliver the certificates for the purchased shares directly to
such broker or dealer in order to complete the sale; and (iii) in the sole
discretion of the Board of Directors of the Company, such other method of
payment or other consideration permitted by applicable law. No shares shall be
delivered pursuant to an exercise of an option until payment in full of the
purchase price therefore is received by the Company.
5. EFFECT OF EXERCISE. Upon the exercise of all or any part of these
options, the number of shares of common stock subject to the options granted
pursuant to this Agreement shall be reduced by the number of shares with respect
to which such exercise is made.
6. EXPIRATION. The options granted hereunder shall expire, to the
extent not previously exercised or earlier terminated pursuant to Section 3
hereof, upon the fifth (5th) anniversary of the date of this Agreement.
7. TRANSFERABILITY. This option shall be transferable only by will or
by the laws of descent and distribution to the estate (or other personal
representative) of Employee and shall be exercisable during Employee's lifetime
only by Employee. Except as otherwise provided herein, any attempt at
alienation, assignment, pledge, hypothecation, transfer, sale, attachment,
execution or similar process, whether voluntary or involuntary, with respect to
all or any part of this option or any right under this Agreement, shall be null
and void.
8. WITHHOLDING REQUIREMENTS. In the event the Company determines that
it is required to withhold state or federal income taxes as a result of the
exercise of these options, Employee shall be required, as a condition to the
exercise hereof, to make arrangements satisfactory to the Company to enable it
to satisfy such withholding requirements.
9. RIGHTS AS A STOCKHOLDER. Employee, or any permitted transferee of
Employee, shall have no rights as a stockholder with respect to any shares
covered by these options until the date of the issuance of a stock certificate
for such shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property), distributions or
other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 10 of this Agreement. This
Agreement shall not confer upon Employee any right of continued employment by
the Company or interfere in any way in the Company's right to terminate
Employee.
10. RECAPITALIZATION. The number of shares of common stock covered by
this option and the exercise price thereof shall be proportionately adjusted for
any increase or decrease in the number of issued shares of common stock
resulting from a subdivision or consolidation of such shares or the payment of a
stock dividend (but only of common stock) or any other increase or decrease in
the number of issued shares of common stock effected without receipt of
-3-
consideration by the Company. If the Company is the surviving corporation in any
merger or consolidation, this option shall pertain and apply to the securities
to which a holder of the number of shares of common stock subject to the option
would have been entitled. The foregoing adjustments shall be made by the
Company's board of directors, whose determination shall be conclusive and
binding on the Company and Employee.
11. SECURITIES ACT AND OTHER REGULATORY REQUIREMENTS. This option is
not exercisable, in whole or in part, and the Company is not obligated to sell
any shares of the Company's common stock subject to this option, if such
exercise or sale, in the opinion of counsel for the Company, would violate the
Securities Act of 1933 (the "Securities Act") (or any other federal or state
statutes having similar requirements) as it may be in effect at that time.
Employee acknowledges and agrees that the options granted to Employee pursuant
to this Agreement are being acquired for investment purposes only and not with a
view to any public distribution thereof. The certificates evidencing any shares
issued pursuant to these options shall bear such restrictive legends as required
by federal or state law. Employee agrees not to offer to sell or otherwise
dispose of the shares of the Company's common stock acquired upon the exercise
of these options in violation of the registration requirements of the Securities
Act or any applicable securities laws.
12. NOTICES. Any notice or other communication required or permitted
hereunder or by law shall be validly given or made only if in writing and
delivered in person to an officer or duly authorized representative of the other
party, or deposited in the United States mail, duly certified or registered,
return receipt requested, postage prepaid, and addressed to the party to whom
intended. If sent to the Company, it shall be addressed in care of the Chief
Executive Officer, Outdoor Channel Holdings, Inc., 00000 Xxxxxxxx Xxxx Xxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, and if sent to Employee, it shall be
addressed to Employee's address on file with the Company on the date of such
notice. If sent by mail, notice shall be deemed given two days after deposit of
such notice in the mail and in accordance with this section. Any party may from
time to time, by written notice to the other, designate a different address for
notice which shall be substituted for that specified above.
13. CHOICE OF LAW; COUNTERPARTS. This Agreement, and all rights and
obligations hereunder, shall be governed by the laws of the State of California.
This Agreement may be executed in one or more counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
14. ARBITRATION; VENUE. The parties hereto agree that any disputes or
controversies relating to or arising out of this Agreement shall be resolved
exclusively by arbitration, in accordance with the Letter. The venue for any
such proceeding shall be as set forth in the Letter.
15. SUCCESSOR. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs,
beneficiaries, executors and administrators.
-4-
16. INTEGRATION. The terms and conditions of the options hereunder
shall be governed exclusively by this Agreement and this Agreement shall
supercede the Letter and any other agreement between the parties with respect to
all matters pertaining to the options granted hereunder. Employee acknowledges
that this Agreement (and the grant of options hereunder) and the grant of
options to Employee to purchase 25,000 shares of the Company's common stock
under the Company's 1995 Stock Option Plan also made effective as of the date of
this Agreement satisfy the Company's obligations under paragraph 5 of the
Letter. The Board shall have full power and authority to operate, manage and
administer this Agreement and interpret and construe this Agreement.
17. PARAGRAPH HEADINGS; EMPLOYMENT. Paragraph headings are for
convenience only and are not part of the context. This Agreement shall not
obligate the Company or any affiliate to employ Employee for any period of time,
nor does this Agreement constitute a contract or agreement for employment.
18. SHAREHOLDER APPROVAL. This Agreement is effective as of the date
approved by the Board of Directors of the Company; provided, however, that this
Agreement shall be submitted to the Company's stockholders for approval (or
ratification), and if not approved by the stockholders within one year from the
date approved by the Board of Directors, this Agreement shall be of no force and
effect. The options granted under this Agreement before approval of this
Agreement by the stockholders are granted subject to such approval and shall not
be exercisable before such approval.
IN WITNESS WHEREOF, this Agreement is dated as of the date
first written above.
OUTDOOR CHANNEL HOLDINGS, INC.,
an Alaska corporation
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
----------------------------
Title: Chief Executive Officer
--------------------------
EMPLOYEE:
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
-5-
EXHIBIT A
---------
VESTING DATE NUMBER OF VESTED SHARES
------------ -----------------------
January 13, 2004 15,000
April 13, 2004 10,000
July 13, 2004 10,000
October 13, 2004 10,000
January 13, 2005 10,000
April 13, 2005 10,000
July 13, 2005 10,000
October 13, 2005 10,000
January 13, 2006 10,000
April 13, 2006 10,000
July 13, 2006 10,000
October 13, 2006 10,000
January 13, 2007 10,000
April 13, 2007 10,000
July 13, 2007 10,000
October 13, 2007 10,000
January 13, 2008 10,000
--------
TOTAL: 175,000
