EXHIBIT 3.4
STOCK OPTION AGREEMENT
UNDER
DME INTERACTIVE HOLDINGS, INC.
STOCK OPTION PLAN OF 2000
THIS AGREEMENT, made this 21st day of July, 2000, by and between DME
INTERACTIVE HOLDINGS, INC., a Delaware corporation (hereinafter called the
"Company"), and
Xxxxx X. XxXxx (hereinafter called "Optionee"),
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Company ("Board of Directors")
has adopted the DME Interactive Holdings, Inc. Stock Option Plan of 2000 (the
"Plan") pursuant to which options covering shares of the Common Stock of the
Company may be granted to employees of the Company; and
WHEREAS, Optionee is now an employee of the Company; and
WHEREAS, the Company desires to grant to Optionee the option to
purchase certain shares of its stock under the terms of the Plan;
NOW, THEREFORE, in consideration of the premises, and of the mutual
agreements hereinafter set forth, it is covenanted and agreed as follows:
1. GRANT SUBJECT TO PLAN. This option is granted under and is expressly
subject to, all the terms and provisions of the Plan, which terms are
incorporated herein by reference. The Committee referred to in Paragraph 4 of
the Plan ("Committee") has been appointed by the Board of Directors, and
designated by it, as the Committee to make grants of options.
2. GRANT AND TERMS OF OPTION. Pursuant to action of the Committee, which
action was taken as of July 21, 2000 ("Date of Grant"), the Company grants to
Optionee the option to purchase all or any part of five hundred thousand
(500,000) shares of the Common Stock of the Company, no par value ("Common
Stock"), for a period of ten (10) years from the Date of Grant, at the purchase
price of $1.25 per share; provided, however, that the right to exercise such
option shall be, and is hereby, restricted so that no shares may be purchased
prior to the first anniversary of the Date of Grant; and that at any time during
the term of this option on or after the first anniversary of the Date of Grant,
Optionee may purchase up to 100% of the total number of shares to which this
option relates. Notwithstanding the foregoing, in the event of a Change of
Control (as hereinafter defined) Optionee may purchase 100% of the total number
of shares (500,000) to which this option relates. In no event may this option or
any part thereof be exercised after the expiration of ten (10) years from the
Date of Grant. The purchase price of the shares subject to the option may be
paid by any manner specified in Section 6 of the Plan. For the purposes of this
Agreement, a Change of Control means:
a. The purchase or other acquisition (other than from the Company) by
any person, entity or group of persons, within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (excluding, for this purpose, the Company or its subsidiaries or any
employee benefit plan of the Company or its subsidiaries), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 50% or more of either the then-outstanding shares of common stock
of the Company or the combined voting power of the Company's
then-outstanding voting securities entitled to vote generally in the
election of directors; or
b. Approval by the stockholders of the Company of a reorganization,
merger or consolidation, in each case with respect to which persons who
were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more than 50% of, respectively, the common stock and the combined voting
power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated corporation's then-outstanding voting
securities, or of a liquidation or dissolution of the Company or of the
sale of all or substantially all of the assets of the Company.
3. ANTI-DILUTION PROVISIONS. In the event that, during the term of this
Agreement, there is any change in the number of shares of outstanding Common
Stock of the Company by reason of stock dividends, recapitalizations, mergers,
consolidations, split-ups, combinations or exchanges of shares and the like, the
number of shares covered by this option agreement and the price thereof shall be
adjusted, to the same proportionate number of shares and price as in this
original agreement.
4. INVESTMENT PURPOSE. Optionee represents that, in the event of the
exercise by him of the option hereby granted, or any part thereof, he intends to
purchase the shares acquired on such exercise for investment and not with a view
to resale or other distribution; except that the Company, at its election, may
waive or release this condition in the event the shares acquired on exercise of
the option are registered under the Securities Act of 1933, or upon the
happening of any other contingency which the Company shall determine warrants
the waiver or release of this condition. Optionee agrees that the certificates
evidencing the shares acquired by him on exercise of all or any part of this
option, may bear a restrictive legend, if appropriate, indicating that the
shares have not been registered under said Act and are subject to restrictions
on the transfer thereof, which legend may be in the following form (or such
other form as the Company shall determine to be proper), to-wit:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, but have been issued or transferred
to the registered owner pursuant to the exemption afforded by Section
4(2) of said Act. No transfer or assignment of these shares by the
registered owner shall be valid or effective, and the issuer of these
shares shall not be required to give any effect to any transfer or
attempted transfer of these shares, including without limitation, a
transfer by operation of law, unless (a) the issuer shall have
received an opinion of its counsel that the shares may be transferred
without requirement of registration under said Act, or (b) there shall
have been delivered to the issuer a `no-action' letter from
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the staff of the Securities and Exchange Commission, or (c) the shares
are registered under said Act."
5. NON-TRANSFERABILITY. Neither the option hereby granted nor any rights
thereunder or under this Agreement may be assigned, transferred or in any manner
encumbered except by will or the laws of descent and distribution, and any
attempted assignment, transfer, mortgage, pledge or encumbrance except as herein
authorized, shall be void and of no effect. The option may be exercised during
Optionee's lifetime only by him.
6. TERMINATION OF EMPLOYMENT. In the event the Company terminates
Optionee's employment without cause (as defined in the Employment Agreement,
dated August 1, 1999, by and between Optionee and the Company), the option to
purchase all five hundred thousand (500,000) shares first referenced in Section
2 of this Agreement shall vest immediately and Optionee may exercise such option
at any time within three (3) months after such termination.
7. DEATH OF OPTIONEE. In the event of the death of Optionee during the term
of this Agreement and while he is employed by the Company (or a subsidiary), or
within three (3) months after the termination of his employment (or one (l) year
in the case of the termination of employment of an Optionee who is disabled as
provided in the Plan), this option may be exercised, to the extent that he was
entitled to exercise it at the date of his death, by a legatee or legatees of
Optionee under his last will, or by his personal representatives or
distributees, at any time within a period of one (1) year after his death, but
not after ten (10) years from the date hereof, and only if and to the extent
that he was entitled to exercise the option at the date of his death.
8. SHARES ISSUED ON EXERCISE OF OPTION. It is the intention of the Company
that on any exercise of this option it will transfer to Optionee shares of its
authorized but unissued stock or transfer Treasury shares, or utilize any
combination of Treasury shares and authorized but unissued shares, to satisfy
its obligations to deliver shares on any exercise hereof.
9. COMMITTEE ADMINISTRATION. This option has been granted pursuant to a
determination made by the Committee, and such Committee or any successor or
substitute committee authorized by the Board of Directors or the Board of
Directors itself, subject to the express terms of this option, shall have
plenary authority to interpret any provision of this option and to make any
determinations necessary or advisable for the administration of this option and
the exercise of the rights herein granted, and may waive or amend any provisions
hereof in any manner not adversely affecting the rights granted to Optionee by
the express terms hereof.
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10. OPTION AN INCENTIVE STOCK OPTION. This option is intended as, and shall
be treated as, an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf by its Chairman and Chief Executive Officer and to be attested by its
Secretary under the seal of the Company, pursuant to due authorization, and
Optionee has signed this Agreement to evidence his acceptance of the option
herein granted and of the terms hereof, all as of the date hereof.
DME INTERACTIVE HOLDINGS, INC.
By /s/DARIEN DASH
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DARIEN DASH
/s/XXXXX X. XXXXX
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Optionee
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