EXHIBIT 4.1
Xxxxxxxxx Holdings Option Agreement
1. Introduction.
The purpose of the Xxxxxxxxx Holdings Option Agreement and the related
Consulting Agreement, hereinafter collectively referred to the
Agreement, is to enable Xxxxxxxxx Holding, Inc., a Delaware corporation
("Company"), to promote the interests of the Company and its
shareholders by attracting and retaining non-employee Directors and
Consultants capable of furthering the future success of the Company and
by aligning their economic interests more closely with those of the
Company's shareholders, by paying their retainer or fees in the form of
shares of the Company's common stock, par value one tenth of one cent
($0.001) per share ("Common Stock").
2. Definitions.
The following terms shall have the meanings set forth below:
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning set forth in Section 12(d).
"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder. References to any provision of the
Code or rule or regulation thereunder shall be deemed to include any
amended or successor provision, rule or regulation.
"Deferral Election" has the meaning set forth in Section 6.
"Deferred Stock Account" means a bookkeeping account maintained by the
Company for a Participant representing the Participant's interest in the
shares credited to such Deferred Stock
Account pursuant to Section 7.
"Delivery Date" has the meaning set forth in Section 6.
"Director" means an individual who is a member of the Board of Directors
of the Company.
"Dividend Equivalent" for a given dividend or other distribution means a
number of shares of Common Stock having a Fair Market Value, as of the
record date for such dividend or distribution, equal to the amount of
cash, plus the fair market value on the date of distribution of any
property, that is distributed with respect to one share of Common Stock
pursuant to such dividend or distribution; such fair market value to be
determined by the Committee in good faith.
"Effective Date" has the meaning set forth in Section 3.
"Exchange Act" has the meaning set forth in Section 13(b).
"Fair Market Value" means the mean between the highest and lowest
reported sales prices of the Common Stock on the NYSE Composite Tape or,
if not listed on such exchange, on any other national securities
exchange on which the Common Stock is listed or on NASDAQ on the last
trading day prior to the date with respect to which the Fair Market
Value is to be determined.
"Participant" has the meaning set forth in Section 4.
3. Effective Date of the Plan.
The Plan was adopted by the Board effective December 19, 2003
("Effective Date").
4. Eligibility.
Participants shall be deemed as those individuals who are either
Directors or consultants or both and are not an employee of the Company
or any of its subsidiaries. Each option and the underlying shares of
Common Stock pursuant to the Agreements shall be evidenced by a written
agreement duly executed and delivered by or on behalf of the Company and
a Participant, if such an agreement is required by the Company to assure
compliance with all applicable laws and regulations.
5. PROVISIONS RELATING TO STOCK OPTIONS
5.1 Grants of Stock Options.
The Board may grant Stock Options in such amounts, and at such times
as the Board, in its discretion, may determine. The Board shall have the
discretion to grant Stock Options which do not constitute incentive stock
options, and any such Stock Options shall be designated non-statutory
stock options by the Board on the date of grant. Each Stock Option shall
be evidenced by a written agreement in a form approved by the Board, which
shall be executed on behalf of the Company and by the Participant to whom
the Stock Option is granted.
5.2 Purchase Price.
The purchase price ("Exercise Price") of shares of Common Stock
subject to each Stock Option ("Option Shares") shall be $0.5625.
5.3 Option Period.
The Stock Option period (the "Term") shall commence on the date of
grant of the Stock Option and shall be three (3) years or such shorter
period as is determined by the Board.
5.4 Exercise of Options.
5.4.1 Each Stock Option may be exercised in whole or in part (but not
as to fractional shares) by delivering it for surrender or endorsement to
the Company, attention of the Corporate Secretary, at the principal office
of the Company, together with payment of the Exercise Price and an
executed Notice and Agreement of Exercise in the form prescribed by
paragraph 2.4.2. Payment may be made (i) in cash, (ii) by cashier's or
certified check or (iii) by cashless exercise through a brokerage
transaction.
6. Shares Available.
The maximum number of shares of Common Stock which may in the aggregate
be paid as pursuant to the Plan is eight hundred thirty-seven thousand,
five hundred (837,500). Shares of Common Stock issueable under the Plan
may be taken from authorized shares, treasury shares of the Company or
purchased on the open market.
7. Miscellaneous.
(a) Nothing herein shall be deemed to create any obligation on the part
of the Board to nominate any Director for reelection by the Company's
shareholders or to limit the rights of the shareholders to remove any
Director.
(b) The Company shall have the right to require, prior to the issuance
or delivery of any shares of Common Stock, that a Participant make
arrangements satisfactory to the Committee for the withholding of any
taxes required by law to be withheld with respect to the issuance or
delivery of such shares, including without limitation by the withholding
of shares that would otherwise be so issued or delivered, by withholding
from any other payment due to the Participant, or by a cash payment to
the Company by the Participant.
8. Governing Law.
The Plan and all actions taken thereunder shall be governed by and
construed in accordance with the laws of the State of Delaware.
Xxxxxxxxx Holdings, Inc.
By: /s/ Xxxx Xxxx
Xxxx Xxxx, President, Treasurer, Director
