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EXHIBIT 4.3
NONSTATUTORY STOCK OPTION AGREEMENT
DATED DECEMBER 5, 1997
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NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement ("Agreement") is made this
5th day of December, 1997, by and between U.S. Vision, Inc., a Delaware
corporation (hereinafter called the "Company"), and Xxxxx X. Xxxxx (hereinafter
called the "Optionee").
RECITAL
The Optionee has rendered substantial advice or assistance to the
Company, and the Company has determined to grant to the Optionee the Option
(defined below) provided by this Agreement in recognition of such advice or
assistance.
AGREEMENT
In consideration of the premises and the covenants and agreements
contained in this Agreement, the Company and the Optionee hereby agree with
each other as follows:
1. No Obligation. The granting of the Option shall not impose upon the
Company any obligation to employ the Optionee, to continue to elect Optionee as
a director, or to maintain any future relationship with Optionee, and the right
of the Company to terminate its relationship with the Optionee shall not be
diminished or affected by reason of the fact that the Option has been granted
to him.
2. Grant of Nonstatutory Option. Subject to the terms and conditions
set forth herein, the Company hereby grants to the Optionee the nonstatutory
right (a stock option not intended to satisfy the requirements of Section 422
of the Internal Revenue Code of 1986, as amended) (the "Option"), beginning on
today's date and ending on December 31, 2002, to purchase at a price of nine
dollars ($9.00) per share, up to, but not exceeding in the aggregate,
twenty-two thousand two hundred twenty two (22,222) shares of the Company's
common stock, $.01 par value (the "Common Stock"). Optionee may exercise the
Option from time to time as follows: on the date of this Agreement as to not
more than one-third of the total number of shares covered by this Agreement;
from December 6, 1998 until December 5, 1999, as to any number of shares that,
when added to the number of shares previously purchased under the Option, shall
not exceed two-thirds of the total number of shares covered by this Agreement;
and from December 6, 1998 until December 5, 2002, as to any number of shares
that, when added to the number of shares previously purchased under the Option,
shall not exceed 100% of the total number of shares covered by this Agreement.
3. Exercise of Nonstatutory Option. Optionee may exercise the Option
by delivering to the Company a written notification specifying (i) the number
of shares that the Optionee desires to purchase together with cash, certified
check, bank draft, or postal or express money order to the order of the Company
for an amount equal to the option price of such shares and (ii) the address to
which the certificates for such shares are to be mailed. In lieu of payment in
cash or cash equivalents, Optionee may make payment by tendering to the Company
shares of Common Stock, or by tendering shares of Common Stock plus cash or
cash equivalents, in amounts such that the fair market value of the Common
Stock tendered, plus the amount of cash or cash equivalents paid, if any,
equals the option price for the shares to be purchased. The Company may then
require that there be presented to and filed with it such evidence as it may
deem necessary to establish that the shares to be purchased are being acquired
for investment and not with a view to their sale or other disposition.
4. Issuance of Shares. As promptly as practical after receipt of such
written notification and payment and receipt of such evidence of intent to
acquire for investment as may be required by the Company, the Company will
deliver to the Optionee certificates issued in the Optionee's name for the
number of shares with respect to which the Option has been so exercised.
Delivery of such certificates shall be deemed
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effected for all purposes when a stock transfer agent of the Company shall have
deposited such certificates in the United States mail, postage prepaid,
addressed to the Optionee, at the address specified pursuant to Section 3
hereof.
5. Early Termination for Cause. Notwithstanding any other provision of
this Agreement to the contrary, the portion of the Option, if any, that remains
unexercised on the date the Optionee ceases to be an employee, consultant, or
director of the Company because the Company terminates the Optionee's
employment or other relationship with the Company for cause, including that
portion of the Option, if any, that is not yet exercisable as of such date,
shall terminate and cease to be exercisable as of such date. An Optionee's
employment or other relationship with the Company shall be deemed terminated
"for cause" if terminated by the Board of Directors of the Company ("Board of
Directors") because of the Optionee's dishonesty, other acts detrimental to the
Company, or any material breach by the Optionee of any employment,
nondisclosure, noncompetition, or other contract with the Company. Whether
cause exists shall be determined by such Board of Directors in its sole
discretion and good faith. For the purpose of determining the employment or
other relationship between the Company and the Optionee, employment by or
service to any corporation of which the Company owns stock possessing 50
percent or more of the total combined voting power of all classes of stock will
be considered employment by or service to the Company.
6. Early Termination Other than for Cause. If the Optionee ceases to
be an employee, consultant, or director of the Company for any reason other
than for cause as defined in Section 5 above, including, without limitation,
because of the Optionee's death or permanent disability, the Optionee or the
Optionee's executors, administrators, or any person to whom the Option may be
transferred by will or by the laws of descent and distribution, shall have the
right, until the expiration date of the Option, to exercise that portion of the
Option, if any, that has become exercisable by the Optionee pursuant to this
Agreement but that the Optionee has not yet exercised as of the date the
Optionee's employment or other relationship with the Company is terminated by
disability, death, or some reason other than for cause.
7. Executors, Etc. Whenever the word "Optionee" is used in this
Agreement under circumstances in which the provisions logically should be
construed to apply to the executors, administrators, or the person or persons
to whom the Option may be transferred by will or by the laws of descent and
distribution, the word "Optionee" shall be deemed to include such person or
persons.
8. Non-Assignability. The Option is not transferable by the Optionee
otherwise than by will or under the laws of descent and distribution and is
exercisable during his lifetime only by him. No assignment or transfer of the
Option or of the rights represented by the Option, whether voluntary or
involuntary by operation of law or otherwise (except by will or by the laws of
descent and distribution), shall vest in the assignee or transferee any
interest or right in this Agreement whatsoever, but immediately upon any such
assignment or transfer, the Option shall terminate and become of no further
effect.
9. No Rights as Stockholder. The Optionee shall not be deemed for any
purpose to be a stockholder of the Company with respect to any shares as to
which the Option shall not have been exercised, as provided in this Agreement
and until such shares shall have been issued to the Optionee by the Company
under this Agreement.
10. Changes in Company's Capital Structure. The existence of the
Option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any adjustments, recapitalizations,
reorganizations, or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, or preferred or prior preference stock ahead of or affecting the
Common Stock, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
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The shares with respect to which the Option is granted are shares of
the Common Stock of the Company as presently constituted, but if prior to the
delivery by the Company of all the shares of the Common Stock with respect to
which the Option is granted, the Company shall effect a subdivision or
consolidation of shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of shares of the Common
Stock outstanding, without receiving compensation for such shares in money,
services, or property, then (a) in the event of an increase in the number of
such shares outstanding, the number of shares of Common Stock then remaining
subject to the Option shall be proportionately increased, and the option price
per share shall be proportionately reduced; and (b) in the event of a reduction
in the number of such shares outstanding, the number of shares of Common Stock
then remaining subject to the Option shall be proportionately reduced, and the
option price per share shall be proportionately increased.
Until the Option is fully exercised, if the Company is merged or
consolidated with another corporation under circumstances in which the
stockholders of the Company receive consideration for their shares in Company,
if the Company sells or otherwise disposes of substantially all of its assets
to another corporation, or if the Company liquidates or dissolves, then (i)
subject to the provisions of clause (iii) below, after the effective date of
such merger, liquidation, dissolution, consolidation, or sale, as the case may
be, the Optionee will be entitled, upon exercise of the Option, to receive, in
lieu of shares of Common Stock, shares of such stock or other securities (or
cash or other property) as the holders of shares of Common Stock received
pursuant to the terms of the merger, liquidation, dissolution, consolidation,
or sale; (ii) the Board of Directors shall waive any limitations on
exercisability set forth in or imposed pursuant to Section 2 of this Agreement
so that the Option, from and after a date prior to the effective date of the
merger, liquidation, dissolution, consolidation, or sale, as the case may be,
specified by the Board of Directors, will be exercisable in full; and (iii) the
Board of Directors may cancel the Option as of the effective date of any such
merger, liquidation, dissolution, consolidation, or sale provided that (a)
notice of such cancellation is given to the Optionee and (b) has the right to
exercise the Option in full (without regard to any limitations set forth in or
imposed pursuant to Section 2 of this Agreement) during a 30-day period
preceding the effective date of such merger, liquidation, dissolution,
consolidation, or sale.
Except as expressly provided above, the issue by the Company of shares
of stock of any class or securities convertible into shares of stock of any
class for cash or property or for labor or services, either upon direct sale,
upon a merger not resulting in any consideration being received by Company
stockholders, upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into shares
or other securities shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to the Option.
11. Requirements of Law. Notwithstanding any of the provisions hereof,
the Optionee hereby agrees that he will not exercise the Option, and that the
Company will not be obligated to issue any shares to the Optionee under this
Agreement, if the exercise of the Option or the issuance of such shares shall
constitute a violation by the Optionee or the Company of any provisions of any
law or regulations of any governmental authority. If at any time specified in
this Agreement for the issuance of shares to the Optionee, any law or
regulation shall require either the Company or the Optionee to take action in
connection with the shares then to be issued, the issuance of such shares shall
be deferred until such action shall have been taken. The Company shall in no
event be obligated to register any securities pursuant to the Securities Act of
1933, as now in effect or as hereafter amended or to take any other affirmative
action in order to cause the exercise of the Option or the issuance of shares
pursuant to the Option to comply with any law or regulation of any governmental
authority.
12. Notices. Every notice or other communication relating to this
Agreement shall be in writing and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as provided in this
Agreement; provided that, unless and until some other address be so designated,
all notices or communications by the
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Optionee to the Company shall be addressed to the President of the Company and
mailed or delivered to the Company at its office at 00000 X. Xxxxxxx
Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, 00000, and all notices or communications
by the Company to the Optionee may be given to the Optionee personally or may
be mailed to him at Optionee's address listed under Optionee's signature below.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
U.S. VISION, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx., President
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Optionee
00000 Xxxxx Xxxxxx Xxxx
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Street address
Xxxxxxxxxxxx, Xxxxxxxx 00000
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City State/County Zip Code
