Exhibit 10.36
STOCK OPTION AGREEMENT dated as of August 28, 1995 between VideoLan
Technologies, Inc., a Delaware corporation with its principal office at 00000
Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter called the
"Corporation"), and Xxxxxx X. Xxxxxx (hereinafter called the "Optionee").
The Optionee is a director of the Corporation and it is recognized that the
best interests of the Corporation would be served if the Optionee is given the
right to acquire a proprietary interest in the Corporation. Therefore, the
Corporation and the Optionee mutually agree as follows:
1. Stock Option. The Corporation hereby grants to the Optionee an
option (the "Option") to purchase up to 10,000 shares (the "Shares") of the
Common Stock, par value $.01 per share, of the Corporation ("Common Stock") at
an exercise price of $4.00 per share (the "Exercise Price Per Share"). The
Option shall become exercisable as provided in Section 3 hereof and may be
exercised in whole or in part until terminated in accordance with Section 4
hereof. The Option has been issued pursuant to, and is subject to the terms and
provisions of, the 1995 Stock Option Plan of VideoLan Technologies, Inc., as the
same may be amended from time to time (the "Plan"). The Options granted
hereunder are deemed to be nonqualified stock options under the Plan.
2. Exercise Dates. Subject to Section 4 hereof, the Option hereunder
shall become exercisable with respect to all 10,000 Shares on or after August
28, 1995.
3. Manner of Exercise of the Option. The option may be exercised by the
Optionee by giving written notice to the Corporation in the form of Exhibit A
attached hereto (an "Exercise Notice") specifying the number of Shares with
respect to which the Option is being exercised. Upon any exercise of the
Option, the number of Shares with respect to which the Option may thereafter be
exercised by the Optionee shall no longer include the number of Shares with
respect to which the Option has been exercised.
On the tenth business day following receipt of an Exercise Notice by the
Corporation, or at any other time mutually agreed upon by the Corporation and
the Optionee, a closing shall be held (the "Closing"). At the Closing:
(a) the Optionee shall pay to the Corporation, by certified or
cashier's check, the aggregate Exercise Price per Share for the Shares; and
(b) the Corporation shall deliver to the Optionee a stock
certificate representing the Shares.
Prior to the Closing, the Corporation shall inform the Optionee of the amount of
any federal, state and local income and taxes which it determines it is required
to withhold from the Optionee by reason of such exercise of the Option, and the
Optionee, as a condition to the Closing, shall make provision satisfactory to
the Corporation for the payment of such taxes to the Corporation.
4. Termination, Cancellation, Modification and Adjustment of Option.
(a) Termination. The Option and all rights of the Optionee
hereunder, to the extent not previously exercised, shall terminate on
the earliest of the following dates:
(i) August 27, 2005;
(ii) The date of termination of the Optionee's directorship
for any reason whatsoever other than death; provided, however, that any
options which were immediately exercisable by the Optionee hereunder at
the date of such termination of Optionee's directorship may be exercised
by the Optionee during the period ending five (5) years after the date of
such termination, but in no event after the date set forth in Section 4(a)
(i) hereof;
(iii) The date of termination of the Optionee's directorship by
reason of his death, provided, however, that the options, if any, which
were immediately exercisable by the Optionee at the date of his death may
be exercised by the Optionee's
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legal representatives during the period ending three (3) years after the
date of the Optionee's death, but in no event after the date set forth in
Section 4(a)(i) hereof; or
(iv) Thirty days following the date on which the Optionee
receives a Cancellation Notice from the Corporation as provided in Section
4(b) hereof.
(b) Cancellation of Option. Notwithstanding the foregoing
provisions of this Section, the Corporation shall have the right to terminate
the right of the Optionee to exercise the Option, effective thirty (30) days
after receipt by the Optionee of a written notice from the Corporation informing
the Optionee that this option is to be cancelled (the "Cancellation Notice").
The Corporation may issue a Cancellation Notice only in connection with (i) the
sale of substantially all of the Corporation's assets, or (ii) a merger,
consolidation or other corporate transaction in which the Corporation would not
be the surviving entity. Following receipt of a Cancellation Notice and during
the period prior to the effective date of the termination, the Optionee shall
have the right to exercise the Option (to the extent not previously exercised)
with respect to all Shares covered hereby (even if under Section 2 the Option
would not otherwise have become exercisable with respect to all Shares at that
time).
(c) Modification of Agreement. The Optionee hereby consents to any
amendment of the Plan and of this Agreement which the Board of Directors in its
sole discretion and upon advice of legal counsel, may deem necessary or
advisable to enable the exercise of the Option to comply with any applicable
rules and regulations of the Securities and Exchange Commission, including,
without intending any limitation, any amendment which would exempt such exercise
from the operation of Section 16 of the Securities Exchange Act of 1934. Except
as otherwise provided herein, this agreement may not be amended or modified
except pursuant to an agreement in writing signed by Corporation and the
Optionee.
(d) Adjustment of Option. In the event that prior to the exercise
in full of the Option, the Corporation shall have effected one or more stock
dividends, stock splits, reorganizations,
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recapitalizations, combinations of shares, mergers, consolidations, or other
changes in the corporate structure or stock of the Corporation, the Board of
Directors shall equitably adjust the number, kind and Exercise Price per Share
of the Shares remaining subject to the Option in accordance with the Plan.
(e) Sales of Shares Acquired Upon Exercise of the Option. Shares of
Common Stock acquired upon exercise of the Option, cannot be sold unless they
are registered pursuant to a registration statement filed with the Securities
and Exchange Commission or if an exemption from registration is available.
5. No Rights in Shares. The Optionee shall not have any of the rights
and privileges of a stockholder of the Corporation in respect of any Shares
covered by the Option until the Optionee shall have become the holder of record
of any such Shares.
6. Nontransferability. The Option shall not be transferable by the
Optionee, except by will or the laws of descent and distribution, and is
exercisable during the Optionee's lifetime only by him, except as set forth in
Section 4 hereof. Any sale, donation, pledge, hypothecation, assignment or
other transfer contrary to the provisions of this Agreement is null and void.
7. Effect upon Service as a Director. Nothing contained in this
Agreement or in the Plan shall confer upon the Optionee any right with respect
to Optionee continuing to serve as a director of the Corporation.
8. Determination. Each determination, interpretation or other action
made or taken pursuant to the provisions of this Agreement by the Board of
Directors shall be final and conclusive for all purposes and shall be binding
upon all persons, including, without limitation, the Corporation and the
Optionee, and their respective successors and assigns.
9. Reference to the Plan. The Option has been granted pursuant to and
subject to the provisions of the Plan, which is hereby incorporated herein by
reference. Anything herein to the contrary
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notwithstanding, each and every provision of this Agreement shall be subject
to the terms and conditions of the Plan.
10. Governing Law. This Agreement and all determinations made and
actions taken pursuant hereto shall be governed by the internal laws of the
State of Delaware and construed in accordance therewith, without giving effect
to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the date and
year first above written.
VIDEOLAN TECHNOLOGIES, INC.
BY: /s/_Steve_Rothenberg_______
Title: Chief Financial Officer
/s/_Howard_Jacobs______________
Xxxxxx X. Xxxxxx, Optionee
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EXHIBIT A
EXERCISE NOTICE
______________, _____
VideoLan Technologies, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
Reference is made to that certain Stock Option Agreement dated as
of August 28, 1995 between the undersigned and VideoLan Technologies,
Inc. (the "Corporation") , pursuant to which the undersigned was granted
an option (the "Option") to purchase shares of the Common Stock (the
"Shares") of the Corporation (the "Option Agreement"). The undersigned
hereby elects to exercise the Option to the extent of _____ Shares.
The undersigned hereby acknowledges that he has been informed by
the Corporation that the Shares to be acquired upon this exercise of the
Option have not been registered under the Securities Act of 1933, as
amended (the "Act"). In the event the Shares are not registered at the
time the Option is exercised, the Shares may have to be held
indefinitely unless they are subsequently registered under the Act or an
exemption from registration is available. The undersigned understands
that any sale of the any of such Shares made in reliance upon Rule 144,
promulgated by the Securities and Exchange Commission under the Act, can
be made only in limited amounts in accordance with the terms and
conditions of that Rule, and in the event that Rule 144 is not
applicable to any such sale, public resale may require compliance with
the registration provisions, Regulation A, or some other disclosure
provision or exemption under the Act. In the event the Shares are not
registered under the Act, the undersigned agrees he will make no sale or
other transfer of such Shares unless the Corporation receives an opinion
of its counsel to the effect that registration thereof is a prerequisite
to such sale or that an exemption from such registration is available.
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The undersigned agrees that if the Shares are not registered, the
certificates representing such Shares shall bear the following legend:
"THE SHARES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT
OF 1933 OR AN OPINION OF COUNSEL TO THE CORPORATION
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT."
Very truly yours,
____________________________
Optionee
