Exhibit 10.17
OPTION #597A
NAVARRE CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into and effective as of this 6th day of
September, 2002 (the "Date of Grant"), by and between Navarre Corporation (the
"Company") and, Xxxx Xxxxxx (the "Optionee").
A. The Company has adopted the Navarre Corporation 1992 Stock Option Plan
(the "Plan") authorizing the Board of Directors of the Company, or a committee
as provided for in the Plan (the Board or such a committee to be referred to as
the "Committee"), to grant incentive stock options to eligible employees of the
Company, which, options will qualify as "incentive stock options" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
B. The Company desires to give the Optionee an inducement to acquire a
proprietary interest in the Company and an added incentive to advance the
interests in the Company by granting to the Optionee an option to purchase
shares of common stock of the Company pursuant to the Plan.
Accordingly, the parties hereby agree as follows:
ARTICLE 1. GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase 250,000 shares (the "Option Shares") of the Company's
common stock, no par value per share (the "Common Stock"), according to the
terms and subject to the conditions hereinafter set forth and as set forth in
the Plan. The Option is intended to be an "incentive stock option," as that term
is used in Section 422 of the Code.
ARTICLE 2. OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise
of the Option shall be $1.34.
ARTICLE 3. DURATION OF OPTION AND TIME OF EXERCISE.
3.1 Initial Period of Exercisability. Subject to the terms and conditions
hereof, the Option shall become exercisable with respect to the Option Shares in
five installments. The following table sets forth the initial dates of
exercisability of each installment and the number of Option Shares as to which
this Option shall become exercisable on such dates:
Initial Date of Number of Option Shares
Exercisability Available for Exercise
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When the stock price reaches $2.00 per share 50,000
When the stock price reaches $3.00 per share 50,000
When the stock price reaches $3.50 per share 50,000
When the stock price reaches $4.50 per share 50,000
When the stock price reaches $6.00 per share 50,000
The foregoing rights to exercise this Option shall be cumulative with respect to
the Option Shares becoming exercisable on each such date but in no event shall
this Option be exercisable after, and this Option shall become void and expire
as to all unexercised Option Shares at 4:00 p.m. (Minneapolis time) on September
6, 2008 (the "Time of Termination").
3.2 Termination of Employment or Other Service. Except as otherwise
provided in Section 3.3 below:
(a) In the event that the Optionee's employment or other service with the
Company and all Subsidiaries (as defined in the Plan) is terminated by reason of
the Optionee's death, Disability or Retirement (as such terms are defined in the
Plan), this Option shall remain exercisable to the extent exercisable as of such
termination for a period of three months after such termination (but in no event
after the Time of Termination).
(b) In the event the Optionee's employment or other service with the
Company and all Subsidiaries is terminated for any reason other than death,
Disability or Retirement, all rights of the Optionee under the Plan and this
Agreement shall immediately terminate without notice of any kind, and this
Option shall no longer be exercisable.
3.3 Change in Control.
(a) For purposes of this Section 3.3, the term "Change in Control" shall
have the meaning set forth in Section 10.1 of the Plan.
(b) If any events constituting a Change in Control of the Company shall
occur, then this Option shall become immediately exercisable in full until the
Time of Termination, whether or not the Optionee remains in the employ or
service of the Company or any Subsidiary. In addition, if a Change in Control of
the Company shall occur, the Committee, in its discretion, and without the
consent of the Optionee, may determine that the Optionee shall receive, with
respect to some or all of the Option Shares, as of the effective date of any
such Change in Control of the Company, cash in an amount equal to the excess of
the Fair Market Value (as defined in the Plan) of such Option Shares immediately
prior to the effective date of such Change in Control of the Company over the
option exercise price per share of this Option.
(c) Notwithstanding anything in this Section 3.3 to the contrary, if, with
respect to the Optionee, acceleration of the exercisability of this Option or
the payment of cash in exchange for all or part of this Option as provided above
(which acceleration or payment could be deemed a payment within the meaning of
Section 280G (b) (2) of the Code), together with any other payments which the
Optionee has the right to receive from the Company or any corporation which is a
member of an "affiliated group" (as defined in Section 1504 (a) of the Code
without regard to Section 1504 (b) of the Code) of which the Company is a
member, would constitute a "parachute payment" (as defined in Section 280G (b)
(2) of the Code), the payments to the Optionee as set forth herein shall be
reduced to the largest amount as will result in no portion of such payments
being subject to the excise tax imposed by Section 4999 of the Code.
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ARTICLE 4. MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained in the Plan and
herein, by delivery, in person or by registered mail, to the Company at its
principal executive office in New Hope, Minnesota (Attention: President), of the
option exercise notice attached hereto as Exhibit A. Such notice shall (i)
identify the Option, (ii) specify the number of Option Shares with respect to
which the Option is being exercised, and (iii) be signed by the person or
persons so exercising the Option. Such notice shall be accompanied by payment in
full of the total purchase price of the Option Shares purchased. In the event
that the Option is being exercised, as provided by the Plan and Section 3.2
above, by any person or persons other than the Optionee, the notice shall be
accompanied by the appropriate proof of right of such person or persons to
exercise the Option. As soon as practicable after the effective exercise of the
Option, the Optionee shall be recorded on the stock transfer books of the
company as the owner of the Option Shares purchased, and the Company shall
deliver to the Optionee one or more duly issued stock certificates evidencing
such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased solely in cash
(including a personal check or a certified or bank cashier's check, payable to
the order of the Company); provided, however, that the Committee, in its
discretion, may allow such payments to be made, in whole or in part, by delivery
of a Broker Exercise Notice or a promissory note (containing such terms and
conditions as the Committee may in its discretion determine), by transfer from
the Optionee to the Company of Previously Acquired Shares, by actual delivery or
attestation, or by a combination thereof. For purposes of this Agreement, the
terms "Broker Exercise Notice" and "Previously Acquired Shares" shall have the
meanings set forth in the Plan. In the event the Optionee is permitted to pay
the total purchase price of this Option in whole or in part with Previously
Acquired Shares, the value of the such shares shall be equal to their Fair
Market Value on the date of exercise of this Option.
ARTICLE 5. NONTRANSFERABILITY.
5.1 Nontransferability. This Option shall not be transferred by the
Optionee, either voluntarily or involuntarily, or subjected to any lien,
directly or indirectly, by operation of law or otherwise, except as provided in
this Agreement and the Plan. Any attempt to transfer or encumber this Option or
the Option Shares other than in accordance with this Agreement and the Plan
shall be null and void and shall void this Option.
ARTICLE 6. LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company to terminate the employment or service of the Optionee at
any time, or (b) evidence of any agreement or understanding, express or implied,
that the Company will retain the Optionee in any particular position, at any
particular rate of compensation or any particular period of time.
ARTICLE 7. WITHHOLDING TAXES.
If the Optionee intends to dispose of any of the shares of Option Shares
acquired upon exercise of the Option within two (2) years from the date the
Option was granted or within one (1) year after the date of exercise of the
Option, then, in order to provide the Company with the opportunity to claim the
benefit
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of any income tax deduction, Optionee shall promptly notify the Company, in
writing, of the intended disposition of such shares, the number of shares to be
disposed of, and the consideration, if any, to be received for such shares. Upon
exercise of the Option by the Optionee and prior to the delivery of the Option
Shares purchased pursuant to such exercise, the Company is entitled to (a)
withhold and deduct from future wages of the Optionee (or from other amounts
which may be due and owing to the Optionee from the Company), or make other
arrangements for the collection of, all legally required amounts necessary to
satisfy any federal, state or local withholding and employment-related tax
requirements attributable to the grant or exercise of this Option or otherwise
incurred with respect to this Option, or (b) require the Optionee promptly to
remit the amount of such withholding to the Company before acting on the
Optionee's notice of exercise of this Option. In the event that the Company is
unable to withhold such amounts, for whatever reason, the Optionee hereby agrees
to pay to the Company an amount equal to the amount the company would otherwise
be required to withhold under federal, state or local law.
ARTICLE 8. ADJUSTMENTS.
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering or extraordinary dividend or divestiture
(including a spin-off) or any other change in the corporate structure or shares
of the Company, the Committee (or, if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation), in order to prevent dilution or enlargement of the right of the
Optionee, shall make appropriate adjustment (which determination shall be
conclusive) as to the number, kind and exercise price of securities subject to
this Option.
ARTICLE 9. SUBJECT TO PLAN.
The Option and the Option Shares granted and issued pursuant to this
Agreement have been granted and issued under, and are subject to the terms of,
the Plan. The terms of the Plan are incorporated by reference herein in their
entirety, and the Optionee, by execution hereof, acknowledges having received a
copy of the Plan. The provisions of this Agreement shall be interpreted as to be
consistent with the Plan, and any ambiguities herein shall be interpreted by
reference to the Plan. In the event that any provision hereof is inconsistent
with the terms of the Plan, the terms of the Plan shall prevail.
ARTICLE 10. MISCELLANEOUS.
10.1 Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
10.2 Governing Law. This Agreement and all rights and
obligations hereunder shall be construed in accordance with the Plan
and governed by the laws of the State of Minnesota.
10.3 Entire Agreement. This agreement and the Plan set forth the entire
agreement and understanding of the parties hereto with respect to the grant and
exercise of this Option and the administration of the Plan and supersede all
prior agreements, arrangements, plans and understandings relating to the grant
and exercise of this Option and the administration of the Plan.
10.4 Amendment and Waiver. Other than as provided in the Plan, this
Agreement may be amended, waived, modified or canceled only by a written
instrument executed by the parties hereto or, in the case of a waiver, by the
party waiving compliance.
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The parties hereto have executed this Agreement effective the day and year
first above written.
NAVARRE CORPORATION
By /s/ Xxxx X. Xxxxxxx
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Its President
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(By execution hereof, the
Optionee acknowledges having
received a copy of the Plan.)
OPTIONEE
/s/ Xxxx Xxxxxx
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