EVENT-BASED VESTING INCENTIVE STOCK OPTION AGREEMENT
EXHIBIT 10.16
This Stock Option Agreement (this “Agreement”) is entered into and effective as of
December 15, 2005 (the “Grant Date”) between FGX International Holdings Limited, a British
Virgin Islands company (the “Company”) and Xxxx Xxxxxx (“Optionee”).
RECITALS
The Company is desirous of increasing the incentive of the Optionee whose contributions are
important to the continued success of the Company and its subsidiaries by means of the grant to the
Optionee of options to purchase the Company’s ordinary shares, $1.00 par value per share
(“Ordinary Shares”), under the FGX International Holdings Limited 2004 Key Executive Stock
Option Plan (f/k/a/ the Envision Worldwide Holdings Limited 2004 Key Executive Stock Option Plan)
(the “Plan”), a copy of which is attached hereto as Exhibit A.
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions of this Agreement and the Plan, the Company hereby grants
to the Optionee an option (the “Option”) to purchase an aggregate of 1.319994 Ordinary
Shares (the “Option Shares”). This Option is intended to be treated as an option which
qualifies as an “incentive stock option” within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”). The number of Option Shares shall be subject to
adjustment in the event of changes in the capitalization of the Company as set forth in Section 19
of the Plan.
2. EXERCISE PRICE
Subject to the terms and conditions of the Plan, the exercise price (the “Option
Price”) of this Option shall be $2,453,728 per Option Share (prorated for any partial Option
Share), which is not less than the fair market value of the Ordinary Shares on the date of grant.
The Option Price of this Option shall be subject to adjustment in the event of changes in the
capitalization of the Company, as set forth in Section 19 of the Plan.
3. TERM AND VESTING OF OPTION
(a) Option Period. Subject to the terms and conditions of the Plan, this Option shall
terminate and all rights to purchase shares hereunder shall cease on the tenth anniversary of the
Grant Date.
(b) Vesting and Exercisability. Subject to the terms and conditions of the Plan, this
Option shall become exercisable upon the occurrence of the events
described in the following schedule and shall be exercisable as to not more than the vested
percentage of the shares subject to this Option as follows:
Incremental | ||||||||||||
Percentage of Option | Cumulative Percentage | |||||||||||
Event | Exercisable | of Option Exercisable | ||||||||||
The date that is immediately following (i) the Company’s Initial Public Offering (as defined in the Plan) and (ii) the Company’s maintaining a Market Capitalization of $1,000,000,000 or greater for 30 consecutive trading days |
50 | % | 50 | % | ||||||||
The date that is immediately following (i) the Company’s Initial Public Offering (as defined in the Plan) and (ii) the Company’s maintaining a Market Capitalization of $1,500,000,000 or greater for 30 consecutive trading days |
50 | % | 100 | % | ||||||||
For purposes hereof, the term “Market Capitalization” shall mean the closing sale price for
an Ordinary Share on the National Association of Securities Dealers Automated Quotation System, or
the principal U.S. securities exchange on which the Ordinary Shares are then listed, or if the
Ordinary Shares are not quoted on the National Association of Securities Dealers Automated
Quotation System and is not listed on a U.S. national or regional exchange, as reported on the
principal other market on which the Ordinary Shares are then traded, multiplied by the total number
of Ordinary Shares issued and outstanding as of such date.
Notwithstanding the foregoing, the Board of Directors of the Company (“Board”) may in its
sole discretion provide that any vesting requirement or other such limitation on the exercise of
this Option may be rescinded, modified or waived by the Board, in its sole discretion, at any time
and from time to time after the Grant Date, so as to accelerate the time at which this Option may
be exercised; provided that the Optionee’s written consent be obtained prior to any such rescission
or modification which would adversely effect the Optionee’s rights hereunder.
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4. PROVISIONS OF PLAN.
The provisions of the Plan shall govern if and to the extent that there are inconsistencies
between those provisions and the provisions hereof. By execution of this Agreement, the Optionee
acknowledges receipt of a copy of the Plan and represents that he or she (a) is familiar with the
terms and provisions thereof, (b) accepts this Option granted hereby subject to all of the terms
and provisions of this Agreement and the Plan, and (c) after reviewing the Plan and this Agreement
in their entirety, has had the opportunity to obtain the advice of counsel and fully understands
all of the terms and provisions of this Agreement and the Plan prior to the execution hereof.
5. MANNER OF EXERCISE AND PAYMENT
(a) Exercise. This Option may be exercised to the extent vested as provided in Section
3 hereof by delivery to the Company on any business day, at its principal office, addressed to the
attention of the President of written notice of exercise, which notice shall specify the number of
shares with respect to which this Option is being exercised, and shall be accompanied by payment in
full of the Option Price of the shares for which this Option is being exercised, by one or more of
the methods provided below.
(b) Payment. Payment of the Option Price for the Ordinary Shares purchased pursuant
to the exercise of this Option shall be made (i) in cash or in cash equivalents; (ii) through the
tender to the Company of Ordinary Shares, which shares shall be valued, for purposes of determining
the extent to which the Option Price has been paid thereby, at their fair market value (determined
in good faith by the Board) on the date of exercise; (iii) by delivering a written direction to the
Company that this Option be exercised pursuant to a “cashless” exercise/sale procedure (pursuant to
which funds to pay for exercise of this Option are delivered to the Company by a broker upon
receipt of stock certificates from the Company) or a cashless exercise/loan procedure (pursuant to
which the Optionee would obtain a margin loan from a broker to fund the exercise) through a
licensed broker acceptable to the Company whereby the stock certificate or certificates for the
Ordinary Shares for which this Option is exercised will be delivered to such broker as the agent
for the individual exercising this Option and the broker will deliver to the Company cash (or cash
equivalents acceptable to the Company) equal to the Option Price for the Ordinary Shares purchased
pursuant to the exercise of this Option plus the amount (if any) of federal and other taxes that
the Company, may, in its judgment, be required to withhold with respect to the exercise of this
Option; (iv) to the extent permitted by applicable law and agreed to by the Board in its sole and
absolute discretion, by the delivery of a promissory note of the Optionee to the Company on such
terms as the Board shall specify in its sole and absolute discretion; or (v) by a combination of
the methods described in clauses (i), (ii), (iii) and (iv). Payment in full of the Option Price
need not accompany the written notice of exercise if this Option is exercised pursuant to the
cashless exercise/sale procedure described above. An attempt to exercise any Option granted
hereunder other than as set forth above shall be invalid and of no force and effect.
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(c) Issuance of Certificates. Promptly after the exercise of this Option, Optionee
shall be entitled to the issuance of a certificate or certificates evidencing his ownership of such
Ordinary Shares. The Company shall use reasonable efforts to deliver the certificate within seven
(7) days following such exercise. An individual holding or exercising an Option shall have none of
the rights of a shareholder until the Ordinary Shares covered thereby are fully paid and issued to
him and, except as provided in Section 19 of the Plan, no adjustment shall be made for dividends or
other rights for which the record date is prior to the date of such issuance.
(d) Execution of Shareholders’ Agreement as Condition to Exercise of Option. In the
event that the Optionee shall desire to exercise all or any portion of this Option prior to the
date on which the Company shall have completed an Initial Public Offering (as defined in the,
Plan), the Optionee shall, as a condition precedent to such Optionee’s exercise of this Option,
execute and deliver (to the extent the Optionee is not already a party thereto) a copy of that
certain Shareholders’ Agreement in the form attached hereto as Exhibit B, with such
amendments, modifications and changes thereto as shall have been made by the parties thereto prior
to the execution thereof by the Optionee.
(e) Lock-Up of Option Shares. During the period commencing on the date hereof and
ending one hundred eighty (180) days after the date of the final prospectus relating to each of the
Initial Public Offering and any subsequent public offering of any of the Company’s securities (or
such longer period as may be required by the lead underwriters) in connection with such Initial
Public Offering or any such subsequent public offering), Optionee agrees not to (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly
or indirectly, any Option Shares or (ii) enter into any swap or other arrangement that transfers
all or a portion of the economic consequences associated with the ownership of any Option Shares,
without the prior written consent of the Board.
6. TRANSFERABILITY OF OPTION
This Option shall not be assignable or transferable by the Optionee, other than by will or the
laws of descent and distribution.
7. DISCLAIMER OF RIGHTS
No provision of this Agreement shall be construed to confer upon the Optionee, the right to
remain in the employ of the Company or any of its subsidiaries or to interfere in any way with the
right and authority of the Company or any of its subsidiaries either to increase or decrease the
compensation of the Optionee, at any time, or to terminate any employment relationship between the
Optionee and the Company or any of its subsidiaries.
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8. MISCELLANEOUS
(a) Waivers, Etc. Neither the failure nor any delay on the part of either party to
exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(b) Governing Law and Jurisdiction. This Agreement shall be construed in accordance
with and governed by the laws of the State of Rhode Island applicable to contracts executed and to
be wholly performed within such State (without regard to the choice of law provisions thereof).
Each party hereby irrevocably and unconditionally consents and submits to the exclusive
jurisdiction of the courts of the State of Rhode Island sitting in Providence County, Rhode Island
and of the United States District Court for the District of Rhode Island for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions contemplated hereby
and each party agrees not to commence any action, suit or proceeding relating thereto except in
such courts. Each party further agrees that any service of process, summons, notice or document
sent by U.S. registered mail to its address set forth herein shall be effective service of process
for any action, suit or proceeding brought against it in any such court. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby in such courts, and
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any
action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
(c) Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have been duly given,
made and received only when personally delivered, one day following the day when deposited with an
overnight courier service for overnight priority service, such as Federal Express, for delivery to
the intended addressee or three days following the day when deposited in the United States mails,
first class postage prepaid, certified or registered mail, and addressed, in the case of the
Company at its principal place of business and to the attention of its Stock Option Administrator
and, in the case of Optionee, as set forth below Optionee’s signature on the last page hereof. Any
person may alter the address to which communications or copies are to be sent by giving notice of
such change of address in conformity with the provisions of this Section for the giving of notice.
(d) Binding Nature of Agreement; Transferability. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. This Agreement shall not be assignable or
transferable by the Optionee other than by will or the laws of descent and distribution.
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(e) Severability. The provisions of this Agreement are independent of and separable
from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue
of the fact that for any reason any other or others of them may be invalid or unenforceable in
whole or in part.
(f) Section Headings. The section headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its interpretation.
(g) Number of Days. In computing the number of days for purposes of this Agreement,
all days shall be counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period falls on a Saturday, Sunday or holiday on which national banks are
or may elect to be closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
(h) No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the parties and their respective heirs, personal
representatives, successors and assigns.
(i) Entire Agreement. This Agreement (including the Plan and the other documents and
exhibits referred to herein) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes any prior understandings, agreements, or representations by or
among the parties, written or oral, that may have related in any way to the subject matter hereof.
(j) Amendments. This Agreement may not be amended, supplemented or modified in whole
or in part except by an instrument in writing signed by the party or parties against whom
enforcement of any such amendment, supplement or modification is sought.
(k) Construction. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and therefore strict construction
shall be applied against any party. Any reference to any federal, state, local or foreign statute
or law shall be deemed also to refer to the rules and regulations promulgated thereunder, unless
the context requires otherwise. The parties intend that each representation, warranty, and covenant
contained herein shall have independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the party has not breached shall not detract from or mitigate
the fact that the party is in breach of the first representation, warranty or covenant.
(l) Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed an original and all of which together will constitute one and the same
instrument.
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(m) Pronouns. The use of any gender in this Agreement shall be deemed to include all
genders, and the use of the singular shall be deemed to include the plural and vice versa, wherever
it appears appropriate from the context.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
FGX INTERNATIONAL HOLDINGS LIMITED |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Chief Financial Officer | |||
OPTIONEE |
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/s/ Xxxx Xxxxxx | ||||
Xxxx Xxxxxx |
||||
Address: 0000 X. Xxxxx Xxxx Xxxxxxx Xxx., XX 00000 |
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Exhibit A
The Plan
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Exhibit B
Shareholders Agreement
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