EXHIBIT 10.19(b)
CINEMARK, INC.
Cinemark, Inc. (the “Company”), desiring to afford an opportunity to the
undersigned optionee (the “Optionee”) to purchase certain shares of the
Company’s Class A Common Stock, par value $.001 per share (the “Common Stock”),
to provide the Optionee with an added incentive as an employee of the Company
or one or more of its Subsidiaries, hereby grants to the Optionee, and the
Optionee hereby accepts, an option to purchase the number of such shares
specified below, during a term ending at the close of business (prevailing
local time at the Company’s principal offices) on the expiration date of this
Option specified below, at the Option exercise price specified below, subject
to and upon the following terms and conditions:
1. Grant of Option. The Company hereby grants to the Optionee effective
as of the date set forth in Section 19 hereof (the “Date of Grant”), the right
and option (the “Option”) to purchase up to the aggregate number of shares the
Common Stock set forth in Section 19 hereof, subject to adjustment pursuant to
Section 3 hereof and subject to the Optionee’s acceptance and agreement to all
of the terms and conditions and restrictions described in the Cinemark, Inc.
2004 Long Term Incentive Plan (the “Plan”), a copy of which has been made
available to the Optionee, and to the further terms, conditions and
restrictions set forth below.
2. Exercise Price. Subject to adjustment pursuant to Section 3, the
exercise price payable by the Optionee upon exercise of this Option is set
forth in Section 19 hereof.
3. Adjustments to Number of Shares and Option Price. The number of shares
of Common Stock issuable under the Option and exercise price for such shares
shall be subject to adjustments as provided in Section 9.4 of the Plan.
4. Tax Status. This Option will be treated as a non-qualified stock
option within the meaning of the Internal Revenue Code of 1986, as amended (the
“Code”). There is no tax consequence to the Optionee at the time the option is
granted. Under the Code, the Optionee will realize ordinary income upon
exercise of the Options to the extent that the Fair Market Value of the Common
Stock at the time of exercise exceeds the exercise price, multiplied by the
number of shares covered by the Option or portion thereof being exercised, and
such exercise by the Optionee will be subject to applicable withholding rules.
5. Exercise of Option. Subject to the terms of the Plan and this Option
Agreement, the Options will vest ratably on a daily basis over a period of five
years only so long as the Optionee is employed by the Company or any
Subsidiary, and the vested portion may be exercised, in whole or in part, by
written notice to the Company at any time and from time to time after the date
of grant. An Option may not be exercised for a fraction of a share of Common
Stock.
6. Expiration of Option. This Option shall expire and cease to be
exercisable on the tenth anniversary of the Date of Grant or such earlier date
as may be specified in the Plan.
7. Termination of Affiliation.
(a) Subject to the following provisions of this Section 7 and
Article VI of the Plan, this Option may not be exercised unless at the
time of exercise the Optionee is an Employee of the Company or a
Subsidiary.
(b) Termination for Cause. In the event that Optionee is an
Employee and the Optionee’s employment by the Company or a Subsidiary
shall terminate for Cause (as defined in the Plan), this Option shall
terminate immediately and shall be of no further force or effect.
(c) Death or Disability.
(i) In the event that an Optionee’s Service to the Company or
a Subsidiary is terminated because of Optionee’s death or
Disability, the Optionee or his estate or legal representative, as
applicable, shall have the right to exercise the Option at any time
within one year of termination of the Optionee’s employment by the
Company or a Subsidiary due to death or six months after the date
of termination of Service due to Disability unless a longer period
is otherwise required by the Code (but in no event later than the
date on which the Option otherwise would have expired by its terms)
only to the extent the Optionee was entitled to exercise his or her
Option immediately prior to the date of death or such Disability,
as applicable; provided that, in addition to the Options held by
such Optionee that have already vested, the lesser of (i) an
additional twenty percent (20%) of the number of shares covered by
the Option and (ii) the remaining amount of unvested shares covered
by the Option shall become vested and exercisable on the date of
termination due to death or Disability. To the extent that this
Option is not so exercised as specified above, it shall expire at
the end of the applicable period. For purposes of this Option
Agreement, Disability shall be as defined in the Plan.
(ii) If the Optionee dies during the three-month period after
the termination of his or her Service to the Company or a
Subsidiary and at the time of his or her death the Optionee was
entitled to exercise this Option, this Option shall expire one year
after the date on which his Service to the Company or a Subsidiary
terminated, but in no event, later than the date on which this
Option would have expired if the Optionee had lived. Until the
expiration of such period, this Option may be exercised by the
Optionee’s executor or administrator or by any person or persons
who shall have acquired the Option directly from the Optionee by
will or in accordance with the laws of descent and distribution,
upon delivery of written notice thereof, a copy of the will, or
such other evidence as the Administrator may determine necessary to
establish the validity of the transfer, but only to the extent that
the Optionee was entitled to exercise the Option at the date of his
or her death and, to the extent the Option is not so exercised, it
shall expire at the end of such period.
(d) Other Termination. In the event that termination of Service to
the Company or a Subsidiary terminates for reasons other than for Cause,
or death or Disability pursuant to Sections 7(b) or 7(c) above, as
applicable, the Optionee shall have the right to exercise this Option at
any time within three months after such termination to the extent the
Optionee was entitled to exercise the same immediately prior to such
termination. To the extent that this Option is not so exercised, it
shall expire at the end of such three-month period beginning on the
termination date.
8. Procedure to Exercise. The Optionee (or other person entitled to
exercise this Option) may purchase shares of Common Stock of the Company
subject hereto by the payment to the Company of the Exercise Price in full. To
the extent that the right to purchase shares has become exercisable in
accordance with the terms of the Plan and this Option Agreement, Options may be
exercised from time to time by written notice to the Administrator, stating the
full number of shares with respect to which the Option is being exercised and
the proposed time of delivery thereof (which shall be at least five (5) days
after the giving of such notice, unless an earlier date shall have been
mutually agreed upon by the Optionee (or other person entitled to exercise the
Option) and the Administrator), accompanied by payment to the Company of the
Exercise Price in full . Such payment shall be effected (i) by certified or
official bank check, (ii) if so permitted by the Administrator, by the delivery
of a number of shares of Common Stock owned by the Participant for at least six
months (or such other period as may be established from time to time by the
Administrator or required by generally accepted accounting principles) (the
“Requisite Holding Period”) duly endorsed for transfer to the Company (plus
cash if necessary) having a Fair Market Value equal to the amount of such
Exercise Price (iii) if so permitted by the Administrator, by payment with
financial assistance from the Company in accordance with the provisions of
Section 7.4 of the Plan or (iv) in the case of an Option, during any period for
which the Common Stock is publicly traded (i.e., the Common Stock is listed on
any established stock exchange or a national market system, including without
limitation the Nasdaq National Market, or if the Common Stock is quoted on the
Nasdaq System (but not on the Nasdaq National Market) or any similar system
whereby the stock is regularly quoted by a recognized securities dealer but
closing sale prices are not reported), by a copy of instructions to a broker
directing such broker to sell the Common Stock for which such Option is
exercised, and to remit to the Company the aggregate Exercise Price of such
Options (a “Cashless Exercise”) ; provided, however, a Cashless Exercise by a
Director or executive officer that involves or may involve a direct or indirect
extension of credit or arrangement of an extension of credit by the Company or
a Subsidiary in violation of Section 402(a) of the Xxxxxxxx-Xxxxx Act (codified
as Section 13(k) of the Securities Exchange Act of 1934, 15 U.S.C. § 78m(k))
shall be prohibited. In addition to payment of the Exercise Price, the
Optionee shall be
required to include payment of the amount of all federal, state, local or other
income, excise or employment taxes subject to withholding (if any) by the
Company or a Subsidiary as a result of the exercise of an Option. The Optionee
may pay all or a portion of the tax withholding by cash or check payable to the
Company, or, at the discretion of the Administrator, upon such terms as the
Administrator shall approve, by (i) certified or official bank check (ii)
Cashless Exercise, if the Stock is publicly traded and the cashless exercise
does not violate Section 402(a) of the Xxxxxxxx-Xxxxx Act; (iii) tendering
Common Stock owned by the Optionee meeting the Requisite Holding Period, duly
endorsed for transfer to the Company, with a Fair Market Value on the date of
delivery equal to the withholding due for the number of shares being exercised
or purchased; (iv) in the case of an Option, by paying all or a portion of the
tax withholding for the number of shares being purchased by withholding shares
from any transfer or payment to the Optionee (“Stock Withholding"); or (v) a
combination of one or more of the foregoing payment methods. The Administrator
will, as soon as reasonably possible, notify the Optionee (or such Optionee’s
representative) of the amount of employment tax and other withholding tax that
must be paid under federal, state and local law due to the exercise of the
Option. At the time of delivery, the Company shall, without transfer or issue
tax to the Optionee (or other person entitled to exercise the Option), deliver
to the Optionee (or to such other person) at the principal office of the
Company, or such other place as shall be mutually agreed upon, a certificate or
certificates for the Option Shares after the Exercise Price and all federal,
state, local or other income, excise or employment taxes subject to withholding
have been paid; provided, however, that the time of delivery may be postponed
by the Administrator for such period as may be required for it with reasonable
diligence to comply with any requirements of law.
9. Nontransferability of Option. This Option shall be exercisable during
the Optionee’s lifetime only by the Optionee. Notwithstanding the foregoing,
this Option may be assignable or transferable by the Optionee pursuant to the
laws of descent and distribution provided that the Company shall have been
furnished with written notice thereof and a copy of the will and/or such other
evidence as the Administrator may determine necessary to establish the validity
of the Transfer. Such assignee or transferee shall be subject to the same
requirements, obligations and restrictions as applied to the Optionee under
this Agreement, the Plan or any other undertaking of Optionee either as an
Optionee or as a Shareholder. All transfers of an Option must comply with the
provisions of Section 5.5(c) of the Plan.
10. Continued Employment or Retention. Subject to the terms of any
Service Agreement between the Company or any Subsidiary and the Optionee,
nothing in this Option Agreement shall in any manner be construed to limit in
any way the right of the Company or any Subsidiary to terminate an Optionee’s
Service at any time, without regard to the effect of such termination on any
rights such Optionee would otherwise have under the Plan or this Option
Agreement, or to give any right to the Optionee to remain employed or retained
by the Company or a Subsidiary in any particular position or at any particular
rate of compensation.
11. Rights as Stockholder. Neither any Optionee nor the legal
representatives, heirs, legatees, distributees or Permitted Transferees of any
Optionee shall be deemed to be the holder of, or to have any of the rights of a
holder with respect to, any Option Shares unless and until such shares of
Common Stock are issued to such Person and such Person has received a
certificate or certificates therefor. Upon the issuance and receipt of such
certificate or certificates, such Option holder shall have absolute ownership
of the shares of Common Stock evidenced thereby, including the right to vote
such shares, to the same extent as any other owner of shares of Common Stock,
and to receive dividends thereon, subject, however, to the terms, conditions
and restrictions of the Plan, the Stockholders Agreement if the Optionee
becomes a party thereto, and any other undertakings of such holder of Common
Stock.
12. Interpretation. If and when questions arise from time to time as to
the intent, meaning or application of the provisions hereof or of the Plan,
such questions shall be decided by the Administrator in its sole discretion, as
applicable, and any such decision shall be conclusive and binding on the
Optionee. The Optionee hereby agrees that this Option is granted and accepted
subject to such condition and understanding. This Option is subject to, and
the Company and the Optionee agree to be bound by, all of the terms and
conditions of the Plan under which this Option was granted, as the same may
have been amended from time to time in accordance with Section 7.1 of the Plan.
A copy of the Plan in its present form is available for inspection during
business hours by the Optionee or other persons entitled to exercise this
Option at the Company’s principal office.
13. Investment Representation. At such time or times as the Optionee may
exercise this Option, the Optionee shall, upon the request of the Company,
represent in writing (i) that the shares being acquired by the Optionee under
this Option will not be sold except pursuant to an effective registration
statement, or applicable exemption from registration, under the Securities Act
of 1933, as amended, (ii) that it is the Optionee’s intention to
acquire the shares being acquired for investment only and not with a view to
distribution thereof, and (iii) other customary representations as the Company
deems necessary or advisable. No shares will be issued to the Optionee unless
the Optionee provides such representations and agreements and the Company is
satisfied as to the accuracy of such representations and agreements. If so
requested by the Company, Optionee hereby agrees to provide a lock-up agreement
in accordance with Section 9.8 of the Plan.
14. Repurchase; Restriction on Transfer; Right of First Refusal. All
shares of Common Stock purchased by the Optionee or his or her Permitted
Transferee and exercisable Options held by the Optionee at the time of
termination of Service to the Company or any Subsidiary shall be subject to
right of repurchase, transfer restrictions and rights of first refusal as set
forth in Section 9.3 of the Plan.
15. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
mailed certified or registered mail (return receipt requested, postage prepaid)
or sent by a nationally recognized overnight delivery service, to the Optionee
at the address on the signature page hereof and to the Company at the address
set forth below or at such other addresses as shall be specified in writing by
the parties by like notice:
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Cinemark, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxx, Xxxxx 7509
Attention: General Counsel |
16. Defined Terms. All capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Plan.
17. Confidentiality. Unless otherwise permitted by the Chairman of the
Board or the President of the Company, the Optionee agrees to keep confidential
the terms of this Option Agreement (and the terms of any other Option Agreement
with any other Employee or Director of the Company known to Optionee) and shall
not disclose such terms to any other Employee or otherwise.
18. Specified Information. This Option Agreement shall apply with respect
to the following specific information:
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(a) |
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Date of Grant: [ ] |
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(b) |
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Name of Optionee: |
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(c) |
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Number of Shares Covered by Option: |
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(d) |
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Option Exercise Price Per Share: |
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(e) |
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Expiration Date: [ ] |
19. Rules of Construction. This Option Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, other than any
choice of law rules calling for the application of laws of another
jurisdiction. Should there be any inconsistency or discrepancy between the
provisions of this Option and the terms and conditions of the Plan under which
this Option is granted, the provisions in the Plan shall govern and prevail.
IN WITNESS WHEREOF, the undersigned have executed this Option Agreement to
be effective as of the Date of Grant set forth above.
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| CINEMARK, INC. |
By:
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Name:
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Title:
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OPTIONEE
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Name:
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| Optionee’s Address: |
