EXHIBIT 4.2
SUNRISE TELEVISION CORP.
NON-QUALIFIED STOCK OPTION LETTER AGREEMENT
TO: Xxxxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
(000) 000-0000
We are pleased to inform you that you have been selected by Sunrise
Television Corp. (the "Company") to receive a non-qualified option (the
"Option") of the Company under the Company's 2002 Stock Option Plan (the "Plan")
to purchase 3,000 shares of the Company's Class B common stock, $.01 par value
per share (the "Common Stock"), at an exercise price of $61.41 per share. A copy
of the Plan is attached to and incorporated into this Letter Agreement by this
reference. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan.
The terms of the Option are as set forth in the Plan and in this Letter
Agreement. The most important of the terms are summarized as follows:
TERM: The term of the Option is ten (10) years from date of grant,
unless sooner terminated.
EXERCISE: Only you can exercise the Option during your lifetime. The
Plan also provides for exercise of the Option by the personal representative of
your estate, by a Person who acquired the right to exercise the Option by
inheritance or bequest or otherwise by reason of your death or by your legal
representative as a result of your Disability. You may use the Notice of
Exercise of Non-qualified Stock Option in the form attached to this Letter
Agreement when you exercise the Option.
PAYMENT FOR SHARES: The Option may be exercised by the delivery of:
(a) Cash, personal check (unless, at the time of exercise, the
Committee determines otherwise), bank-certified check or cashier's check;
(b) Unless the Committee, in its sole discretion, determines otherwise,
shares of the Company's capital stock held by you for at least six months having
a fair market value at the time of exercise, as determined in good faith by the
Committee, equal to the exercise price;
(c) After such time as the stock is publicly traded, unless the
Committee in its sole discretion determines otherwise, a properly executed
exercise notice together with irrevocable instructions to a broker to promptly
deliver to the Company the amount of sale or loan proceeds to pay the exercise
price; or
(d) A full recourse promissory note in the original principal amount of
the exercise price of the Option, with such terms as the Committee may
prescribe, including a fixed interest rate set by the Committee, and the shares
of Common Stock acquired with the proceeds of such note shall be pledged as
collateral for the repayment for such note.
WITHHOLDING TAXES: As a condition to the exercise of the options, you
shall make such arrangements as the Company may require for the satisfaction of
any federal, state or local withholding tax obligations that may arise in
connection with such exercise. The Company shall have the right to retain
without notice sufficient shares of Common Stock to satisfy the withholding
obligation. To the extent permitted or required by the Company, you may satisfy
the withholding obligation by electing to have the Company or a Related Entity
withhold from the shares to be issued pon exercise that number of shares having
a Fair Market Value equal to the amount to be withheld.
TERMINATION:
a) Termination for Cause; Voluntary Termination: Notwithstanding
Section 7.f of the Plan, the following provision shall apply.
If the Company terminates your services for Good Cause or you
voluntarily terminate your services or relationship with the
Company other than in connection with a Termination Event of
the type specified in clause (ii) of the definition thereof,
the unexercised portion of the Option, whether vested or not,
as of the date of such termination shall be immediately
forfeited.
b) Death: In the event of your death, the personal representative
or your estate or a Person who acquired the right to exercise
the Option by inheritance or bequest or otherwise by reason of
your death shall have 180 days from the date of your death to
exercise the then vested but unexercised portion of the Option
as of the date of your death.
c) Disability: In the event of your Disability, you or your legal
representative shall have 180 days from the date of your
Disability to exercise the then vested but unexercised portion
of the Option as of the date your services were terminated as
a result of your Disability.
d) Other Termination. In the event your services rendered to the
Company terminate for any reason (other than (i) those reasons
specified in paragraphs (a), (b) or (c) above, (ii) in
connection with the termination of the Management Services
Agreement by the Company without Cause (as defined in the
Management Services Agreement) or (iii) in connection with the
termination of the Management Services Agreement by the
Manager with Good Reason (as defined in the Management
Services Agreement)), you shall have 30 days from the date of
such termination to exercise the then vested but unexercised
portion of the Option as of the date of such termination; for
the avoidance of doubt, the Option may be exercised at any
point during the Term if your services are terminated pursuant
to clauses (ii) or (iii) above.
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e) No Extension of the Ten-Year Expiration Date: The 180-day
period referred to in paragraphs (b) and (c) above shall not
extend beyond the ten-year expiration date of the Option.
TRANSFER OF OPTION: The Option is not transferable except by will or by
the applicable laws of descent and distribution. During your lifetime, the
Option shall be exercisable only by your or, in the event that a legal
representative has been appointed in connection with your Disability, such legal
representative.
VESTING: Unless accelerated in accordance with the Plan or this letter
agreement, the Option shall vest and become exercisable according to the
following schedule:
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Period Portion of Total Option That is Exercisable
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From January 7, 2002 through and including 8.33%
April 6, 2002
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From April 7, 2002 through and including 8.33%
July 6, 2002
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From July 7, 2002 through and including 8.33%
October 6, 2002
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From October 7, 2002 through and including 8.33%
January 6, 2003
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From January 7, 2003 through and including 8.33%
April 6, 2003
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From April 7, 2003 through and including 8.33%
July 6, 2003
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From July 7, 2003 through and including 8.33%
October 6, 2003
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From October 7, 2003 through and including 8.33%
January 6, 2004
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From January 7, 2004 through and including 8.33%
April 6, 2004
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From April 7, 2004 through and including 8.33%
July 6, 2004
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From July 7, 2004 through and including 8.33%
October 6, 2004
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From October 7, 2004 through and including 8.34%
January 6, 2005
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CHANGE OF CONTROL; CERTAIN TERMINATION EVENTS: In the event of a Change
of Control, the Committee shall provide not less than ten days' prior written
notice of such event to you and the Option (whether vested or not) shall
immediately vest and be exercisable in full beginning not less than the earlier
of (i) ten days prior to the occurence of such Change of Control or (ii) such
other date specified in the Committee's notice; provided that if any such event
is of a type or nature such that ten days prior written notice thereof is not
feasible, then the Committee shall provide notice to you of such event as
promptly as possible and the Option (whether vested or not) shall immediately
vest and be exercisable in full on the date specified in the Committee's notice
(which shall be not less than fifteen (15) days from the date of such notice),
or, if no such date is specified, within thirty (30) days after the date upon
which the Committee provided notice. In the event that your services to the
Company are terminated in connection with the termination of the Management
Services Agreement by the Company without Cause (as defined in the Management
Services Agreement) or in connection with the termination of the Management
Services Agreement by the Manager with Good Reason (as defined in the Management
Services Agreement)), the Option (whether vested or not) shall immediately vest
and be exercisable in full.
PURCHASE OPTION: In the event: your services to or other relationship
with the Company terminates for any reason or a Change of Control occurs, the
Company shall have the right to give notice within one year of such termination
or Change of Control, as applicable, of the Company's election to purchase any
or all unexercised portion of the Option and all shares of Common Stock issued
as a result of the exercise of the Option, whether held by you, your assignees
(in the case of shares of Common Stock), your legal representative (in the case
of your Disability), your executor or administrator of your estate (in the case
of your death) or any Person who acquires such shares or the Option as a result
of your death, as applicable. The purchase price, in the case of shares of
Common Stock, shall be the Fair Market Value per share as of the date of the
notice of exercise of the Purchase Option times the number of shares being
purchased, and in the case of the Option, the Fair Market Value per share (less
the applicable per share Option exercise price) times the number of vested
shares (including by acceleration) subject to such Option which are being
purchased. The Company's Purchase Option shall cease to exist upon the
consummation of a Qualifying Public Offering.
DATE OF ACT: The grant of the Option shall be effective as of
February 8, 2002.
ARBITRATION: As a condition of the Company's grant of the Option to
you, you agree that all disputes between you and the Company shall be resolved
by final and binding arbitration in accordance with the provisions of this
section. This agreement to arbitrate shall remain in effect after termination of
this Agreement with respect to any disputes arising out of events occurring
during the term hereof or arising out of or relating to this Agreement. A party
intending to assert a claim must serve, by hand delivery or a form of mail that
requires a signed return receipt, a written demand for arbitration on the other
party. The demand, if against the Company, must be served on a Vice President or
higher-level officer of the Company. The demand must describe the basis of the
claim with reasonable specificity and the remedy requested. The demand must be
received by the person served within the time limitation set forth below. The
arbitration shall be conducted in accordance with the then-prevailing Employment
Dispute Resolution Rules
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of the American Arbitration Association. Notwithstanding the foregoing, the
following discovery limitations shall apply to the arbitration proceeding: each
party may take the deposition of one individual only and any expert witness
designated by the other party; both parties shall have the right to subpoena
witnesses and documents, but additional discovery may be had only if the
arbitrator so orders after determining there is a substantial need for the
information. Notwithstanding any longer statutes of limitation provided by law,
no claim of any nature whatsoever may be brought by either party against the
other, in arbitration or otherwise, unless a written demand for arbitration is
served on the other party within thirty (30) days after the claim accrued; i.e.,
within thirty (30) days from the date on which the act or event (or failure to
act) on which the claim is based occurred. The arbitrator shall be authorized to
award such relief as is available under the applicable state or federal law on
which the claim is based.
REGISTRATION. The Company shall not in any event be obligated to file
any registration statement under the Securities Act or any applicable state
securities laws to permit exercise of the Option or to issue any Common Stock in
violation of the Securities Act or any applicable state securities laws. You (or
in the event of your death or, in the event a legal representative has been
appointed in connection with your Disability, the Person exercising the Option)
shall, as a condition to your right to exercise the Option, deliver to the
Company an agreement or certificate containing such representations, warranties
and covenants as the Company may deem necessary or appropriate to ensure that
the issuance of the Common Stock pursuant to such exercise is not required to be
registered under the Securities Act or any applicable state securities laws.
Certificates for Common Stock, when issued, shall have substantially
the following legend, or statements of other applicable restrictions, endorsed
thereon, and may not be immediately transferable:
"THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. THE SHARES MAY NOT BE
OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR
OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF
PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER
(WHICH, IN THE DISCRETION OF THE ISSUER, MAY
INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE,
TRANSFER OR OTHER DISPOSITION WILL NOT VIOLATE
APPLICABLE FEDERAL OR STATE LAWS."
The foregoing legend may not be required for Common Stock issued pursuant to an
effective registration statement under the Securities Act and in accordance with
applicable state securities laws.
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Please execute the Acceptance and Acknowledgment set forth below on the
enclosed copy of this Letter Agreement and return it to the undersigned.
Very truly yours,
SUNRISE TELEVISION, CORP.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx,
Executive Vice President and
Chief Financial Officer
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ACCEPTANCE AND ACKNOWLEDGMENT
I, a resident of the State of Texas, accept the non-qualified stock
option described above and in Sunrise Television Corp.'s 2002 Stock Option Plan
(the "Plan") and acknowledge receipt of a copy of this Letter Agreement and the
Plan, and agree to be bound by the same. I have read and understand the Plan.
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Social Security Number Elegible Non-Employee Signature
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Print Name
Date:
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Address
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NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
To: Sunrise Television Corp.
I, a resident of the State of , hereby exercise my
non-qualified stock option granted by Sunrise Television Corp. (the "Company")
subject to all the terms and provisions thereof and of the 2002 Stock Option
Plan referred to therein, and notify the Company of my desire to purchase
shares of Common Stock (the "Securities") of the Company at the
exercise price of $61.41 per share, which were offered to me pursuant to my
non-qualified stock option.
I hereby represent and warrant that I have (1) been furnished with a
copy of the Plan and all information that I deem necessary to evaluate the
merits and risks of the purchase of the Securities; (2) had the opportunity to
ask questions and receive answers concerning the information that I have
received regarding the Securities and Sunrise; and (3) been given the
opportunity to obtain any additional information I deem necessary to verify the
accuracy of any information obtained concerning the Securities and Sunrise.
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Social Security Number Eligible Non-Employee Signature
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Print Name
Date:
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Address
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For: Sunrise Television Corp.
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