Exhibit 10.78
ACTION PERFORMANCE COMPANIES, INC.
1998 NON-QUALIFIED STOCK OPTION PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of the Grant Date, as set
forth on the attached Exhibit A, by and between ACTION PERFORMANCE COMPANIES,
INC., an Arizona corporation (the "Company"), and the person named as the
Optionholder (the "Optionholder") on the attached Exhibit A.
Optionholder is a key person associated with the Company, and the
Company considers it desirable and in its best interest that Optionholder be
given an inducement to acquire a proprietary interest in the Company and added
incentive to advance the interest of the Company by possessing an option to
purchase shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), all in accordance with the Action Performance Companies, Inc.
1998 Non-Qualified Stock Option Plan (the "Plan"), a copy of which is attached
as Exhibit B. For purposes of this Agreement, the term "Company" includes any
parent or subsidiary of the Company as defined in Section 424 of the Internal
Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, it is agreed by and between the parties as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionholder, as of
the grant date (the "Grant Date") specified in the attached Exhibit A, the
right, privilege and option ("Option") to purchase shares of Common Stock as set
forth on the attached Exhibit A (the "Optioned Shares"), subject in all respects
to the terms, conditions and provisions of this Agreement and the Plan, which is
attached hereto as Exhibit B and incorporated by reference in this Agreement.
The Optionholder acknowledges having received and carefully reviewed a copy of
the Plan. The Option is not intended to be an Incentive Stock Option as defined
in Section 422 of the Code.
2. OPTION PRICE. The option price (the "Option Price") as determined
by the Plan Administrator is set forth on the attached Exhibit A.
3. VESTING OF OPTION.
(a) VESTING SCHEDULE. The vesting schedule shall be as set
forth on Exhibit A hereto.
(b) ACCELERATION. The Plan Administrator may, by resolution
adopted after the Grant Date in its sole and absolute discretion, allow the
Option to be exercised on an accelerated basis.
4. EXERCISE OF OPTION. The Option issued hereunder shall be
exercisable by written notice to the Company, addressed to the Company at its
principal place of business, in accordance with the terms of the Plan. Such
notice shall state the election to exercise the Option and the number of shares
with respect to which it is being exercised, and shall be signed by the
Optionholder. Such notice shall be accompanied by payment in full of the
exercise price for the number of shares being purchased. Payment may be made in
cash or by check or, if then permitted by the Plan Administrator, by tendering
duly endorsed certificates representing shares of Common Stock then owned by the
Optionholder and held for the requisite period necessary to avoid a charge to
the Company's earnings and valued at Fair Market Value on the date of exercise.
Upon the exercise of the Option, the Company shall deliver, or cause to be
delivered, to the Optionholder a certificate or certificates representing the
shares of Common Stock purchased upon such exercise as soon as practicable after
payment for those shares has been received by the Company. If the Option is
exercised pursuant to Section 10 hereof by any person other than the
Optionholder, such notice shall be accompanied by appropriate proof of the right
of such person to exercise the Option. All shares that are purchased and paid
for in full upon the exercise of the Option shall be fully paid and
non-assessable.
5. STOCK LOCK-UP. The Optionholder hereby agrees that, at the
request of the Company, the Optionholder (or in the case of the Optionholder's
death, his or her successors as provided under the Plan) shall agree
not to sell or otherwise transfer any acquired Optioned Shares during any stock
lock-up period agreed to by the Company and any underwriter associated with a
public offering of Common Stock.
6. TERMINATION OF OPTION. The Option, to the extent not previously
exercised, shall terminate upon the first to occur of the date that is (a) three
months after termination of the Optionholder's Service (as defined below) with
the Company or any parent or subsidiary of the Company, unless due to death or
Disability (as defined in Section 22(e)(3) of the Code); (b) one year after
termination of Service due to death or Disability; or (c) 10 years after the
Grant].. Notwithstanding the foregoing (i) if the Optionholder's Service is
terminated by the Company in its good faith judgment, for (A) commission of a
crime by the Optionholder or for reasons involving moral turpitude; (B) an act
by the Optionholder which tends to bring the Company into disrepute; or (C)
negligent, fraudulent or willful misconduct by the Optionholder, or (ii) if
after the Service of the Optionholder is terminated, the Optionholder commits
acts detrimental to the Company's interests, then the Option shall thereafter be
void for all purposes. For purposes of this Agreement, unless otherwise set
forth in Exhibit A, the Optionholder shall be deemed to be in "Service" to the
Company so long as such individual renders services to the Company in the
capacity of an employee, consultant or independent contractor.
7. NO PRIVILEGE OF STOCK OWNERSHIP. The holder of the Option granted
hereunder shall not have any of the rights of a stockholder with respect to the
Optioned Shares until such Optionholder shall have exercised the Option, paid
the Option Price, and received a stock certificate for the purchased shares of
Common Stock.
8. LIABILITY OF THE COMPANY.
(a) If the Optioned Shares covered by this Agreement exceed,
as of the Grant Date, the number of shares of Common Stock which may without
shareholder approval be issued under the Plan, then this Option shall be void
with respect to such excess shares unless shareholder approval of an amendment
increasing the number of shares of Common Stock issuable under the Plan is
obtained prior to exercise of the Option with respect to such excess shares.
(b) The inability of the Company to obtain approval from any
regulatory body having authority deemed by the Company to be necessary to the
lawful issuance and sale of any Common Stock pursuant to this Agreement shall
relieve the Company of any liability with respect to the nonissuance or sale of
the Common Stock as to which such approval shall not have been obtained. The
Company, however, shall use its best efforts to obtain all such approvals.
9. NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Agreement or
in the Plan shall confer upon the Optionholder any right to continue in the
Service of the Company (or any parent or subsidiary corporation of the Company
employing or retaining Optionholder) for any period of time or to interfere with
or otherwise restrict in any way the rights of the Company (or any parent or
subsidiary corporation of the Company employing or retaining Optionholder) or
the Optionholder, which rights are hereby expressly reserved by each, to
terminate the Service of Optionholder at any time for any reason whatsoever,
with or without cause.
10. ASSIGNABILITY. Unless the Optionholder has received written
consent of the Plan Administrator, neither this Option nor any rights or
privileges conferred hereby shall be assignable or transferable by the
Optionholder other than by will or by the laws of descent and distribution, and
this Option shall be exercisable only by Optionholder during the Optionholder's
lifetime. Upon the death of Optionholder, the rights of the successors to
Optionholder shall be limited as set forth in the Plan.
11. BINDING AFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
12. COMPLIANCE WITH LAWS AND REGULATIONS; SECURITIES MATTERS.
(a) The exercise of this Option and the issuance of the Common
Stock upon such exercise shall be subject to compliance by the Company and the
Optionholder with all applicable requirements of law relating thereto and with
all applicable regulations of any stock exchange or trading market on which the
shares
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of the Common Stock may be listed at the time of such exercise and issuance. In
connection with the exercise of this Option, Optionholder shall execute and
deliver to the Company such representations in writing as may be requested by
the Company in order for it to comply with applicable requirements of federal
and state securities laws.
(b) The Option granted hereunder may be exercised by the
Optionholder only if (i) the shares of Common Stock which are to be issued upon
such exercise are registered under the Securities Act of 1933, as amended (the
"1933 Act") and any and all other applicable securities laws, or (ii) the
Company, upon advice of counsel, determines that the issuance of the shares of
Common Stock upon the exercise of the Option is exempt from registration
requirements.
(c) The Company is under no obligation to register, under the
1933 Act or any other applicable securities laws, any of the shares of Common
Stock to be issued to the Optionholder upon the exercise of the Option or to
take any action which would make available any exemption from registration. If
the shares to be issued to the Optionholder upon the exercise of the Option have
not been registered under the 1933 Act and all other applicable securities laws,
those shares will be "restricted securities" within the meaning of Rule 144
under the 1933 Act and must be held indefinitely without any transfer, sale or
other disposition unless (a) the shares are subsequently registered under the
1933 Act and all other applicable securities laws, or (b) the Optionholder
obtains an opinion of counsel which is satisfactory to counsel for the Company
that the shares may be sold in reliance on an exemption from registration
requirements. In the event that the shares to be issued upon exercise of the
Option are "restricted securities," the certificates representing shares of
Common Stock issued upon exercise of an Option shall be endorsed with a legend
reading substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ARE 'RESTRICTED
SECURITIES' AS DEFINED BY RULE 144 UNDER THAT ACT. THE SHARES MAY
NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR, IN LIEU THEREOF, AN OPINION
OF COUNSEL FOR THIS COMPANY TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THAT ACT.
13. WITHHOLDING TAXES; OTHER DEDUCTIONS. The Company shall have the
right to deduct from any settlement of the Option, including the delivery or
vesting of shares (a) an amount sufficient to cover withholding as required by
law for any federal, state or local taxes, and (b) any amounts due from the
Optionholder to the Company or to any subsidiary or parent of the Company or to
take such other action as may be necessary to satisfy any such withholding or
other obligations, including withholding from any other cash amounts due or to
become due from the Company to the Optionholder an amount equal to such taxes or
obligations.
14. DEFINED TERMS. All capitalized terms herein which are not
otherwise defined herein shall have the same meaning ascribed to such terms in
the Plan.
15. NOTICES. Any notice required to be given or delivered to the
Company under the terms of this Agreement shall be in writing and addressed to
the Company in care of the Company's Secretary at its principal corporate
offices. Any notice required to be given or delivered to Optionholder shall be
addressed to the address indicated on Exhibit A. All notices shall be deemed to
have been given or delivered upon personal delivery or upon deposit in the U.S.
mail, postage prepaid and properly addressed to the party to be notified.
16. CONSTRUCTION. This Agreement and the Option evidenced hereby are
made and granted pursuant to the Plan and are in all respects limited by and
subject to the express terms and provisions of the Plan. All decisions of the
Plan Administrator with respect to any question or issue arising under the Plan
or this Agreement shall be conclusive and binding on all persons having an
interest in this Option.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement
or caused it to be executed as of the Grant Date.
ACTION PERFORMANCE COMPANIES, INC.
By:___________________________________
Its: Chief Financial Officer
OPTIONHOLDER
______________________________________
Printed Name:
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EXHIBIT A
Name of Optionholder:
Address of Optionholder: ________________________
________________________
________________________
Grant Date:
Option Price per Share:
Number of Optioned Shares:
Vesting Schedule:
