Exhibit 10.22
STOCK OPTION AGREEMENT
BETWEEN
XXXXX XXXXXX
AND @ ENTERTAINMENT, INC.
This Stock Option Agreement ("Option Agreement'), is made
effective as of January 26, 1998 (the "Effective Date"), by and between Xxxxx
Xxxxxx ("Warner") and @ Entertainment, Inc., a Delaware corporation (the
"Company").
1. Grant of Option and Option Period.
a. The Company hereby grants Warner an option (the "Option")
to purchase seventy-five thousand (75.00) shares (the "Shares") of the Company's
common stock (the "Common Stock"), with a par value of $0.01 per share, pursuant
to the terms and conditions set forth in this Option Agreement. The exercise
price for the Option (the "Exercise Price") shall be twelve dollars and
twenty-four cents (U.S. $12.24) per share.
b. The option to purchase twenty-five thousand (25,000) of
these Shares will vest each year on the anniversary date of the Effective Date
beginning with the first anniversary of the Effective Date, provided, however,
that (i) the Option shall vest in full immediately on the date of change in
control of the Company (for purposes of this clause, the term "change in
control" shall have the same meaning, except with respect to the Company rather
than Polish Communications, Inc. ("PCI"), as that term has in the Indenture
dated as of October 31, 1996, between PCI and State Street Bank and Trust
Company as trustee with respect to those certain 9 7/8% Senior Notes of the
Company due 2003) and (ii) no portion of such option shall vest after the date
(the "Cut-Off Date") that is the earlier of (a) the date that the Employment
Agreement (as described in Section 16 of this Agreement) is terminated , and (b)
the date on which the Company sends Warner a notice referred to in Section II of
the Employment Agreement.
c. If Warner's employment with the Company is terminated for
any reason, Warner shall have only sixty (60) days after the Cut-Off Date to
exercise that portion of the Option that has vested as of the Cut-Off Date, and
Warner shall have no right to exercise any portion of the Option that has not
then vested.
d. Notwithstanding any other provision of this Option
Agreement, the Option shall expire and be of no further force or effect with
respect to any Shares on the earlier to occur of (i) the tenth anniversary of
the Effective Date or (ii) sixty days after the date that Warner ceases to be an
employee of the company for any reason whatsoever (including but not limited to
Warner's death, disability, voluntary termination or involuntary termination).
e. Each exercise of the Option shall reduce, by an equal
number the total number of shares of Company Common stock that may thereafter be
purchased by Warner under the Option.
2. Manner of Exercise.
Subject to the conditions and restrictions contained in Section 3 below, the
Option shall be exercised by delivering written notice of exercise to the
Secretary of the Company. Such notice shall be irrevocable and must be
accompanied by payment in cash, banker's draft or such other form of
consideration as the Company may approve, and a signed Subscription Agreement,
reasonably acceptable to both parties.
3. Non-transferability.
Neither this Option nor any interest therein may be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner (other than by will or by
the laws of descent and distribution during the option period described in
Section 1, or in a manner as may be established from time to time by the
Company's Stock Option Committee pursuant to the Company's 1997 Stock Option
Plan). This Option is not assignable by operation of law or subject to
execution, attachment or similar process. During Warner's lifetime, the Option
can only be exercised by Warner. Any attempted sale, pledge, assignment,
hypothecation or other transfer of the Option or any interest therein contrary
to the provisions hereof, or the levy of any execution, attachment or similar
process upon the Option or any interest therein shall be null and void and
without force or effect. No transfer of the Option by gift in trust to a family
member, by will or by the laws of descent and distribution shall be effective to
bind the Company unless the Company shall have been furnished written notice
thereof executed by the trustee(s) of a trust established for a family member or
the personal representative of the estate of Warner which shall be accompanied
by an authenticated copy of the documents appointing such trustee(s) or of the
letters testamentary appointing such personal representative, or such other
evidence as the Company may deem reasonably necessary to establish the validity
of the transfer, and also evidence as the Company may deem reasonably necessary
to establish the acceptance by the transferee or transferees of the terms and
conditions of the Option. The terms of the Option transferred by will or by the
laws of descent and distribution shall be binding upon the executors,
administrators, heirs and successors of Warner. The terms of the Option
transferred in trust shall be binding upon the trustee(s) of such trust.
4. Adjustment in the Event of Change in Stock.
In the event of any change in the outstanding Common Stock of the Company due to
stock dividends, recapitalizations, reorganizations, mergers, consolidations,
split-ups, rights offering, warrants, or exchange of shares, the number and kind
of the Shares and/or the purchase price per Share will be appropriately
adjusted, upwards or downwards, consistent with such change. The reasonable
determination of the Company regarding any adjustment will be final and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of the Shares.
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5. No Stock Rights.
Warner shall not be entitled to vote, be deemed the holder of any Shares, have
the right to receive dividends with respect to any Shares, or otherwise have any
of the rights of a stockholder of the Company with respect to any Shares, unless
and until Warner has exercised the Option with respect to such Shares in
accordance with the terms and conditions of this Option Agreement.
6. Reservation and Issuance of Shares.
a. The Company will at all times have authorized, and reserve
and keep available, free from preemptive rights, for the purpose of enabling it
to satisfy any obligation to issue the number of shares of Common Stock
deliverable upon exercise of the Option.
b. The Company covenants that all Shares will, upon issuance
in accordance with the terms of this Agreement, be duly authorized, fully paid
and non-assessable.
7. Lock-Up Agreement
a. Agreement. During the term of this Option Agreement,
Warner, if requested by the Company and the lead underwriter of any public
offering of the Common Stock or other securities of the Company (the "Lead
Underwriter"), hereby irrevocably agrees not to sell, contract to sell, grant
any option to purchase, transfer the economic risk of ownership in, make any
short sale of, pledge or otherwise transfer or dispose of any interest in any
Common Stock or any securities convertible into or exchangeable or exercisable
for or any other rights to purchase or acquire Common Stock (except Common Stock
included in such public offering or acquired on the public market after such
offering) during the 180-day period following the effective date of a
registration statement of the Company filed under the Securities Act of 1933, as
amended, or such shorter period of time as the Lead Underwriter shall specify.
Warner further agrees to sign such documents as may be requested by the Lead
Underwriter to effect the foregoing and agrees that the Company may impose
stop-transfer instructions with respect to such Common Stock or such other
securities subject until the end of such period. The Company and Warner
acknowledge that each Lead Underwriter of a public offering of the Company's
stock, during the period of such offering and for the 180-day period thereafter,
is an intended beneficiary of this Section 7.
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8. Registration Rights.
a. Registration Procedures. The Company will, as expeditiously
as possible:
(i) prepare and file with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-8 (the
"Registration Statement") with respect to the Shares and use its best efforts to
cause such Registration Statement to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective;
(iii) furnish to Warner such number of copies of a prospectus,
in conformity with the requirements of the Securities Act, and such other
documents, as Warner may reasonably request; and
(iv) use its best efforts to register or qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
Warner shall reasonably request (provided, however, that the Company shall not
be obligated to qualify as a foreign corporation to do business under the laws
of any jurisdiction in which it is not then qualified or to file any general
consent to service of process).
It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Section 8 in respect of the
securities which are to be registered at the request of Warner that Warner shall
furnish to the Company such information regarding the securities held by Warner
and the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.
b. Expenses. All expenses incurred in complying with Section
8, including, without limitation, all registration and filing fees (including
all expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for the Company, expenses of any special audits
incident to or required by any such registration and expenses of complying with
the securities or blue sky laws of any jurisdictions pursuant to this Section 8,
shall be paid by the Company, except that (i) the Company shall not be liable
for any fees, discounts or commissions to any underwriter in respect of the
securities sold by Warner; and (ii) the Company shall not be liable for any fees
or expenses of counsel for Warner in connection with any registration.
c. Indemnification and Contribution.
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(i) In the event of any registration of any of the Shares
under the Securities Act pursuant to this Section 8, the Company shall indemnify
and hold harmless Warner, against any losses, claims, damages or liabilities,
joint or several, to which Warner may become subject under the Securities Act or
any other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (1)
any alleged untrue statement of any material fact contained, on the effective
date thereof, in any Registration Statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (2) any
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
Warner for any legal or any other expenses reasonably incurred by Warner in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any alleged untrue statement or alleged omission
made in such Registration Statement, preliminary prospectus, prospectus or
amendment or supplement in reliance upon and in conformity with written
information regarding Warner or his stock furnished to the Company by Warner
specifically for use therein or so furnished for such purposes by any
underwriter. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of Warner, and shall survive the transfer
of such securities by Warner.
(ii) Warner by acceptance hereof, agrees to indemnify and hold
harmless the Company, its directors and officers and each other person, if any,
who controls the Company within the meaning of the Securities Act against any
losses, claims, damages or liabilities, joint or several, to which the Company
or any such director or officer or any such person may become subject under the
Securities Act or any other statute or at common law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon information regarding Warner or his stock in writing provided to
the Company by Warner specifically for use in the following documents and
contained, on the effective date thereof, in any Registration Statement under
which securities were registered under the Securities Act at the request of
Warner, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto.
(iii) If the indemnification provided for in this Section 8
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities
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or expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
(iv) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
9. Representations and Warranties of Warner. In order to
induce the Company to accept this Option Agreement, Warner hereby represents and
warrants to the Company as follows:
a. If in the future Warner desires to offer or dispose of the
Option or any the Shares or any interst therein, he will do so only in
compliance with applicable securies laws and this Option Agreement.
x. Xxxxxx acknowledges that there may be restrictions under
the securities laws of the jurisdiction(s) in which he resides on the sale of
the Shares he obtains on exercise of the Option, and that he should seek legal
assistance before proceeding with the purchase or sale of said Shares.
x. Xxxxxx agrees that the representations and warranties of
Warner set forth in this Section 9 shall survive the exercise of the Option and
the termination or expiration of this Option Agreement for a period of six
months.
10. Governing Law.
This Option Agreement shall be construed in accordance with and governed by the
laws of the State of Delaware without regard to the principles of conflicts of
laws or choice of law.
11. Benefit.
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This Option Agreement shall be binding upon the Company, Warner, their heirs,
executors, administrators, legal representatives, successors, and permitted
assigns, and Warner in furtherance thereof may execute a will directing Warner's
executor to perform this Option Agreement and to execute all documents necessary
to effectuate the purposes of this Option Agreement, but the failure to execute
such a will shall not affect the rights of the Company or the obligations of
Warner's estate as provided in this Option Agreement. Nothing in this Option
Agreement, expressed or implied, is intended to confer upon any person, other
than the parties hereto, any rights or remedies under or by reason of this
Option Agreement.
12. Specific Performance.
The parties to this Option Agreement hereby agree that an award of damages alone
is inadequate to remedy a breach of terms of this Option Agreement and that
specific performance, injunctive relief or other equitable remedy is the only
way by which the intent of this Option Agreement may be adequately realized upon
breach by one or more of the parties. Such remedy shall, however, be cumulative
and not exclusive, and shall be in addition to any other remedy which the
parties may have.
13. Waiver.
Failure to insist upon strict compliance with any of the terms, covenants or
conditions of this Option Agreement shall not be deemed a waiver of such terms,
covenants or conditions, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
14. Notice.
a. All notices required to be given under the terms of this
Agreement or which any of the Parties may desire to give hereunder shall be in
writing and delivered personally or sent by express delivery, by facsimile, or
by registered or certified mail with proof of receipt, postage and expenses
prepaid and with return receipt requested addressed as follows:
If to the Company:
@ Entertainment, Inc.
c/o Chase Enterprises
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
X. S. A.
Facsimile: (000) 000-0000
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Attention: Xxxxxxxxxx Xxxxx
With a copy to:
Xxxx X. Xxxx
Xxxxx & XxXxxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
U. S. A.
Facsimile: (000) 000-0000
If to Warner:
Xxxxx Xxxxxx
Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxx
Xxxx, Xxxxxxx
XX00 0XX
Facsimile:
b. Notice given in accordance with this Section 15 shall be
deemed to have been given when delivered personally, or when received if sent
via express delivery, facsimile, or registered or certified mail, postage
prepaid and return receipt requested.
c. Any party may change its address for notices by
communicating its new address in writing to the other party.
15. Entire Agreement. This Option Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by writing executed by all of the parties.
16. Severability.
The invalidity or unenforceability of any provisions of this Option Agreement
shall in no way affect the validity or enforceability of any other provision
hereof.
17. Headings.
The headings to the sections of this Option Agreement are used for reference
only and are not to be construed as limiting or extending the provisions hereof.
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18. Counterparts.
This Option Agreement may be executed in any number of counterparts, each of
which shall be considered an original but all of which shall constitute the
Option Agreement by and among the parties.
IN WITNESS THEREOF, the undersigned have executed this Option
Agreement effective as of the date first above written.
@ Entertainment, Inc., a
Delaware corporation
By:
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Xxxxxx X. Xxxxxx, III
Its: Chief Executive Officer
--------------------------------
Xxxxx Xxxxxx
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