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EXHIBIT 4.5
STOCK OPTION AGREEMENT
(NON-EMPLOYEE DIRECTORS)
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THIS AGREEMENT, entered into as of the 19th day of September,
1996 by and among NEW HORIZONS WORLDWIDE, INC., a Delaware corporation (the
"Company"), and XXXXX X. XXXXXXXXXX (the "Optionee").
W I T N E S S E T H
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WHEREAS, the Board of Directors of the Company has determined
that the Optionee, a member of the Board of Directors of the Company who is not
employed by the Company or any subsidiary of the Company (a "Non-Employee
Director") should be granted an option to purchase shares of Common Stock of the
Company, $0.01 par value per share (the "Common Stock"), upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, the grant of this option is subject to approval by
the stockholders of the Company.
NOW, THEREFORE, the Company and the Optionee hereby agree with
respect to such stock options as follows:
1. The Company grants to the Optionee, upon the terms and
subject to the conditions hereinafter set forth, the right and option to
purchase all or any part of an aggregate of Ten Thousand (10,000) shares of
Common Stock (such collective right and option being hereinafter referred to as
the "Option") at a price of $8.81 per share.
2. The term of the Option shall be for a period of Ten (10)
years after the date hereof, and the Option shall expire at 5:00 P.M.,
Morganville, New Jersey time on the last day of the term of the Option, which
date is September 19th, 2006 or, if earlier, on the applicable expiration date
provided for in paragraph 4 hereof.
3. The Option will not be exercisable until affirmed by the
stockholders of the Company. Thereafter, the Optionee shall become entitled to
exercise the Option with respect to all Ten Thousand (10,000) shares of Common
Stock. To the extent that the Option has become exercisable, as provided above,
the Option may thereafter be exercised by the Optionee either as to all or any
part of such whole Shares at any time or from time to time prior to expiration
of the Option pursuant to paragraph 2 hereof. Except as provided in paragraph 4
hereof, the Option may not be exercised at any time unless the Optionee shall,
at the time of exercise, be a Non-Employee Director of the Company.
4. If the Optionee ceases to be a Non-Employee Director due to
disability, the Option shall terminate on the earlier of the date which is one
(1) year after the date the Board determines Optionee is disabled or the last
day of the term of the Option. If the Optionee dies
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while a Non-Employee Director, such person or persons as shall have acquired, by
will or by the laws of descent and distribution, the right to exercise the
Option (the "Personal Representative") may exercise the Option to the extent of
the purchase rights, if any, which had accrued as of the date of the Optionee's
death pursuant to paragraph 3 hereof and which have not theretofore been
exercised. Such accrued purchase rights shall in any event terminate upon the
earlier of the date which is one (1) year after the date of the Optionee's death
or the last day of the term of the Option. If the Optionee ceases to be a
Non-Employee Director for any reason other than disability or death, the Option
shall terminate on the earlier of the date which is ninety (90) days after the
date of the cessation of his or her directorship or the last day of the term of
the Option. Nothing contained in this Agreement shall confer upon the Optionee
any right to continue as a director of the Company.
5. In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, share split, share dividend,
split-up, share combination, or other change in the corporate structure of the
Company affecting the shares of Common Stock, an adjustment shall be made in the
number and class of and/or price of shares of Common Stock subject to this
Option, as may be determined to be appropriate and equitable by the Board, in
its sole discretion, to prevent dilution or enlargement of rights; and provided
that the number of shares of Common Stock attributable to any Option shall
always be a whole number. The determination of the Board of Directors of the
Company as to any such adjustment shall be conclusive and binding upon the
Optionee and upon the Personal Representative.
6. The Option may be exercised by delivery to the Secretary of
the Company at its executive offices, 000 Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxx Xxxxxx
00000, of a completed Notice of Exercise of Option (obtainable from the
Secretary of the Company) setting forth the number of whole shares of Stock with
respect to which the Option is being exercised together with payment in full for
such shares of Common Stock, unless other arrangements satisfactory to the
Company for prompt payment are made.
If and to the extent permitted by the Board of Directors of
the Company upon request from the Optionee, the purchase price may be paid by
means of delivery by the Optionee of certificates for shares of Common Stock
then owned by the Optionee, duly endorsed with signature guaranteed and in
proper form for transfer to the Company, having an aggregate Fair Market Value
(as defined herein) equal to the purchase price (or portion thereof) of the
shares of Common Stock for which the Option is being exercised. For purposes of
this paragraph 6, "Fair Market Value" means (a) if the shares of Common Stock
are listed on a nationally recognized stock exchange or the NASDAQ Stock Market,
the closing price of the shares of Common Stock on the date the fair market
value of the shares of Common Stock is being determined, or, if no sale has
occurred on such date, on the most recent preceding day on which there is a
closing price of the shares of Common Stock, or (b) in all other circumstances,
the value determined by the Board after obtaining an appraisal by one or more
independent appraisers meeting the requirements of regulations issued under
Section 170(a)(1) of the Internal Revenue Code of 1986, as amended.
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7. Upon receipt by the Company prior to expiration of the
Option of a duly completed Notice of Exercise of Option accompanied by a
certified or cashier's check and/or certificates for Shares, as provided in
paragraph 6 hereof, in full payment for the Shares being purchased pursuant to
such Notice (and, with respect to any Option exercised pursuant to paragraph 4
hereof by the Personal Representative, accompanied in addition by proof as to
the right of the Personal Representative to exercise the Option), the Company
shall cause to be mailed or otherwise delivered to the Optionee or the Personal
Representative, as the case may be, as soon as practicable, but in any event
within thirty (30) days of such receipt, a certificate or certificates for the
number of shares of Common Stock so purchased. Notwithstanding the foregoing,
the delivery of such certificates is hereby expressly conditioned upon obtaining
an investment representation from the Optionee or the Personal Representative in
such form as the Company, in its sole discretion, shall determine to be
adequate. The Optionee or the Personal Representative shall not have any of the
rights of a stockholder with respect to the shares of Common Stock covered by
the Option unless and until one or more certificates representing such shares of
Common Stock shall be issued to the Optionee or the Personal Representative.
8. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and the heirs, estate and
Personal Representative of the Optionee. The Option may be exercised during the
lifetime of the Optionee only by the Optionee, except as otherwise set forth
herein.
9. All obligations of the Company with respect to this
Agreement shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
10. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of this Agreement, and this Agreement shall be construed and
enforced as if the illegal or invalid provision had not been included.
The granting of the Option and the issuance of shares of
Common Stock under this Agreement shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. Transactions under this
Agreement are intended to comply with all applicable conditions of Rule 16b-3 or
its successors under the Securities Exchange Act of 1934, as amended. To the
extent any provision of this Agreement fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the Board
of Directors of the Company.
To the extent not preempted by Federal law, this Agreement
shall be construed in accordance with and governed by the laws of the State of
Delaware.
The Option granted under this Agreement shall, for purposes of
the Federal income tax, be nonqualified stock options.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its undersigned officer thereunto duly authorized,
and the Optionee has hereunto set his hand, all as of the day and year first
above written.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Xxxxxx Xxx Xxxxx, Xx.
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Xxxxxx Xxx Xxxxx, Xx.
Chairman of the Board and
Chief Executive Officer
OPTIONEE:
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
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