EXHIBIT 4.4
xxxxxxxx.xxx, inc.
AMENDED & RESTATED
NON QUALIFIED STOCK OPTION AGREEMENT
I. NOTICE OF STOCK OPTION GRANT:
Xxxxxx X. Xxxxxx
000 X. Xxxxxxx Xxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
As you ("Optionee") know, on July 17, 2003, you were granted an option
to purchase Common Stock of xxxxxxxx.xxx, inc. (the "Company"), subject to the
terms and conditions of this Stock Option Agreement of the same date (the
"Original Option Agreement"). The parties wish to amend Paragraph 5(b) of the
Original Option Agreement and to amend and restate in its entirety the terms of
your grant as set forth below:
Date of Grant: July 17, 2003
Exercise Price per Share $0.20 per Share
Total Number of Shares Granted 500,000
Total Exercise Price: $100,000.00
Type of Option: Non-Qualified Stock Option
Exercise and Vesting Schedule: Twenty five percent (25%) of the total number of
Shares covered by the Option shall vest immediately
after the Grant Date. The balance of the Shares
covered by the Option shall vest on a pro rata
basis in successive three (3) month intervals
during the period commencing on the date that is
three (3) months following the Grant Date and
ending on the third (3rd) anniversary of the Grant
Date (equivalent to 33,333.33 shares per such three
month interval)(each such date being a "Vesting
Date").
Term/Expiration Date: July 17, 2013 (Tenth anniversary of date of
grant).
Plan: This Stock Option is not being granted pursuant to
any particular stock option plan (a "Plan") of the
Company and shall be governed solely by this
Agreement.
II. AGREEMENT:
1. Grant of Option. The Company hereby grants the Optionee an option to purchase
the number of Shares set forth in the Notice of Stock Option Grant (the "Notice
of Grant"), at the exercise price per share set forth in the Notice of Grant
(the "Exercise Price"). This Option is not intended to, and does not qualify as
an Incentive stock Option as defined in Section 422 of the Code. Unless
otherwise specified, defined terms used below have the meanings ascribed to such
terms in Section 10 below.
2. Exercise of Option. This Option is exercisable as follows:
(a) Right to exercise.
(i) This option shall be exercisable cumulatively according to
the Exercise and Vesting Schedule set out in the Notice of Grant.
(ii) There shall be no proportionate or partial vesting in the
periods prior to each Vesting Date and vesting shall occur only on the
appropriate Vesting Date.
(iii) This Option may not be exercised for a fraction of a
Share.
(iv) In the event of Optionee's termination of Continuous
Status as an employee or Consultant, the exercisability of the Option
is governed by Section 6 below.
(v) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in the Notice of
Grant.
(b) Method of Exercise. This Option shall be exercisable by
written notice (in the form attached as Exhibit A). The notice
must state the number of Shares for which the Option is being
exercised, and such other representations and agreements with
respect to such shares of Common Stock as may be necessary in
order for the Company to comply with applicable laws and
regulations. The notice must be signed by the Optionee and
shall be delivered in person or by certified mail to the
Secretary of the company. The notice must be accompanied by
payment of the Exercise Price, including payment of any
applicable withholding tax. This option shall be deemed to be
exercised upon receipt by the company of such written Notice
accompanied by the Exercise Price and payment of any
applicable withholding tax.
No Shares shall be issued pursuant to the exercise of
an Option unless such issuance and such exercise comply with
applicable laws and regulations and the requirements of any
stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares
shall be considered transferred to the Optionee on the date on
which the option is exercised with respect to such Shares.
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3. Method of Payment. Payment of the Exercise Price shall be any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
(c) with the consent of the Company, other shares of Common Stock
that: (i) in the case of shares acquired upon exercise of an
option granted by the Company either have been owned by the
Optionee for more than six months on the date of surrender or
were not acquired, directly or indirectly, from the Company,
and (ii) have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the shares as to
which said option shall be exercised;
(d) with the consent of the Company in its sole and absolute
discretion, authorization from the company to retain the total
number of shares as to which the option is exercised that
number of shares having a Fair Market Value on the date of
exercise equal to the exercise price for the total number of
shares as to which the Option is exercised;
(e) with the consent of the Company, delivery of a properly
executed exercise notice together with irrevocable
instructions to a broker to deliver promptly to the company
the amount of sale or loan proceeds required to pay the
exercise price;
(f) with the consent of the Company a combination of any of the
foregoing methods of payment;
(g) with the consent of the Company, a combination of any of the
foregoing methods of payment at least equal in value to the
stated capital represented by the shares to be issued, plus a
promissory note for the balance of the exercise price; or
(h) with the consent of the Company, such other consideration and
method of payment for the issuance of shares to the extent
permitted under applicable laws and regulations.
4. Restrictions on Exercise. If the issuance of Shares upon such exercise or if
the method of payment for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation, then the
Option may also not be exercised. The Company may require Optionee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation before allowing the Option to be exercised.
5. Effect of Certain Transactions.
(a) In the event of a merger or consolidation of the Company with
or into another corporation, or the sale of all or
substantially all of the assets of the Company (a
"Transaction"), the Option shall be assumed, or an equivalent
option shall be substituted, by the Successor Corporation;
provided, however, that, unless otherwise determined by the
Company, the Option shall remain subject to all of the
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conditions and restrictions which were applicable to the
Option prior to such assumption or substitution; and further
provided that in connection with any sale of all or
substantially all of the assets of the Company, the Company
may determine not to require the assumption of this Option in
which event this Option shall be exercisable only until the
earlier of (i) the original Term/Expiration Date as set forth
in the Notice of Grant and (ii) ninety days from the date of
closing of any such sale. For the purposes of this paragraph,
the Option shall be considered assumed if, following the
merger or sale of assets, the option confers the right to
purchase or receive upon exercise, for each Share subject to
the Option immediately prior to the Transaction, the
consideration (whether stock, cash, or other securities or
property) received in the Transaction for each Share held on
the effective date of the Transaction (and if holders were
offered a choice of consideration, the type of such
consideration as determined by the Board of Directors).
(b) In the event of a Change in Control, whether or not in
conjunction with a transaction which would constitute a
"Transaction" within the meaning of Section 5(a) above, then
concurrently with the effective date of such Change in
Control, all of the then unvested Shares covered by the Option
shall vest.
6. Termination of Relationship.
(a) If Optionee's Continuous Status as an employee or Consultant is
terminated for any reason (other than by reason of death), Optionee may exercise
this option for a period of three (3) months after such termination (but in no
event beyond the expiration of the stated term) to the extent, and only to the
extent, that such Option or portion thereof was vested and exercisable as of the
date of such termination. To the extent that Optionee was not vested in this
option at the date on which Optionee's Continuous Status as an employee or
Consultant is terminated, or if Optionee does not exercise this option within
the time specified herein, the Option shall terminate.
(b) If Optionee's Continuous Status as an employee or Consultant is
terminated as a result of Optionee's death, Optionee's heirs or personal
representative (or other administrator of Optionee's estate) may exercise this
option for a period of one (1) year after such death (but in no event beyond the
expiration of the stated term) to the extent, and only to the extent, that such
Option or portion thereof was vested and exercisable as of the date of such
death. To the extent that Optionee was not vested in this option at the date of
death, or if Optionee's heirs or personal representatives (or other
administrator of Optionee's estate) do not exercise this option within the time
specified herein, the Option shall terminate.
7. Non-Transferability of Option. This option may not be transferred in any
manner except by will or by the laws of descent or distribution. It may be
exercised during the lifetime of Optionee only by Optionee. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
8. Term of Option. This Option may be exercised only within the terms set out in
the Notice of Grant.
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9. Registration. The Company will use its commercially reasonable efforts to
take all steps necessary to register the Shares underlying this Option under the
Securities Act of 1933, as amended, on form S-8 or any other form necessary as
soon as practical (which shall in all events be deemed timely if registered
within 180 days from the Date of Grant), following execution of this Agreement.
In the event that the Shares are not so registered at the time of exercise then
the certificates representing the Shares issued or to be issued hereunder shall
be stamped or otherwise imprinted with legends substantially in the following
form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR AN
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES
UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL ACCEPTABLE TO
COUNSEL FOR THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH
LAWS.
10. Defined Terms.
The following defined terms when used in this Agreement will have the
following meanings:
(a) "Affiliate" means a person controlling, controlled by, or
under common control with, another Person.
(b) "Change in Capitalization" means any increase or reduction in
the number of shares, or any change (including, but not
limited to, in the case of a spin-off, dividend or other
distribution in respect of Shares, a change in value) in the
Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company or another
corporation, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization,
spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock
split, cash dividend, property dividend, combination or
exchange of shares, repurchase of shares, change in corporate
structure or otherwise.
(c) "Change in Control" means the occurrence of either of the
following:
(i) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Exchange Act), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) or forty percent (40%) or more of the then
outstanding Shares or the combined voting power of the Company's then
outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred pursuant to this Section
10(c)(i), Shares or Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute
an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan
(or a trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this
definition, a "Majority-Owned Subsidiary"), (ii) the Company or its
Majority-Owned Subsidiaries, (iii) Xxxxxx Xxxxxxxx or Xxxxxxx Xxxx or
any Affiliate of either or both of such Persons, or (iv) any Person in
connection with a "Non-Control Transaction" (as hereinafter defined);
or
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(ii) The consummation of:
a) a merger, consolidation or reorganization with or
into the Company or in which securities of the Company are
issued, unless such merger, consolidation or reorganization is
a "Non-Control Transaction". A "Non-Control Transaction" shall
mean a merger, consolidation or reorganization with or into
the Company or in which securities of the Company are issued
where:
i) the stockholders of the Company, immediately
before such merger, consolidation or reorganization, own
directly or indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent (60%)
of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or
consolidation or reorganization (the "Surviving Corporation")
in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization; and
ii) no Person other than (1) the Company, (2) any
Majority-Owned Subsidiary, (3) any employee benefit plan (or
any trust forming a part thereof) that, immediately prior to
such merger, consolidation or reorganization, was maintained
by the Company or any majority-owned subsidiary, or (4) any
Person who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of thirty percent
(30%) or more of the then outstanding Voting Securities or
Shares, has Beneficial Ownership of thirty percent (30%) or
more of the combined voting power of the Surviving
Corporation's then outstanding voting securities of its common
stock.
b) the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Majority-Owned Subsidiary or the
distribution to the Company's stockholders of the stock of a
Majority-Owned Subsidiary or any other assets).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than
the permitted amount of the then outstanding Shares or Voting
Securities as a result of the acquisition of Shares or Voting
Securities by the Company which, by reducing the number of
Shares or Voting Securities then outstanding, increases the
proportional number of shares Beneficially Owned by the
Subject Persons, provided that if a Change in Control would
occur (but for the operation of this sentence) as a result of
the acquisition of Shares or Voting Securities by the Company,
and after such share acquisition by the Company, the Subject
Person becomes the Beneficial Owner of any additional Shares
or Voting Securities which increases the percentage of the
then outstanding Shares or Voting Securities Beneficially
Owned by the Subject Person, then a Change in Control shall
occur.
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(d) "Consultant" means any consultant or advisor that qualifies as
an "employee" within the meaning of the rules applicable to
Form S-8, as in effect from time to time, of the Securities
Act of 1933, as amended.
(e) "Continuous Status" means the employment or relationship as a
Consultant is not interrupted or terminated. The Board of
Directors, in its sole discretion, may determine whether
Continuous Status as an Employee or Consultant shall be
considered interrupted in the case of: (i) any leave of
absence approved by the Board of Directors, including sick
leave, military leave, or any other personal leave; or (ii)
transfers between locations of the Company or between the
Company, Affiliates or their successors.
(f) "Fair Market Value" means as of any particular date, the
closing sales prices of the Common Stock on such date on the
principal national securities exchange on which such Common
Stock is listed or admitted trading, or, if not so listed or
admitted to trading, the average of the closing bid price and
closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System
or such other market in which such prices are regularly quoted
(including the Over-the-Counter Bulletin Board), or if there
have been no published bid or asked quotations with respect to
the Common Stock on such date, Fair Market Value shall be the
value established by the Board of Directors in good faith.
(g) "Person" means a natural person or any corporation,
partnership, limited liability company or other entity.
11. Adjustments. In the event of a Change in Capitalization, the Company shall
make such adjustments to the number and class of Shares or other stock or
securities subject to the Option and the purchase price for such Shares or other
stock or securities as the Board of Directors, in its sole discretion, believes
is equitably required to prevent dilution or enlargement of the rights granted
hereunder.
12. Withholding of Taxes. Upon exercise of the Option, Optionee will pay to the
Company (or make arrangements satisfactory to the Company that are in compliance
with applicable laws), any U.S. federal, state or local taxes of any kind
required by law to be withheld with respect of the exercise of the Option. The
Company and/or its Subsidiaries shall, to the extent permitted by law, have the
right to deduct from any payment of any kind otherwise due to Optionee any U.S.
federal, state or local taxes of any kind required by law to be withheld with
respect to the exercise of the Option. The Optionee may elect to have withheld a
portion of the Shares issuable upon exercise of the Option having an aggregate
fair market value, on the date preceding the date of such issuance, equal to the
taxes required to be withheld.
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13. Application of Section 16 of the Securities Act. The Optionee has been
advised that the Optionee may be subject to the reporting requirements of
Section 16(a) of the Securities Exchange Act of 1934 (the "`34 Act") and the
holder may be subject to xxxxxxx xxxxxxx restrictions and reporting requirements
on the purchase and sale of securities of the Company imposed under the `34 Act.
14. Successors and Assigns. The Company may assign any of its rights under this
agreement to single or multiple assignees, and this Agreement shall inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this agreement shall be binding upon
Optionee and his or her heirs, executors, administrators, successors and
assigns.
15. Governing Law; Severability. This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware excluding that
body of law pertaining to conflicts of law. Should any provision of this
agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
16. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address shown below beneath its
signature, or to such other addresses as such party may designate in writing
from time to time with the other party.
17. Further Instruments. The parties agree to execute such further instruments
and to take such further action as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
18. Modification of Agreement. This Agreement may be modified, amended,
suspended or terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
19. Severability. Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
document.
21. Entire Agreement. This Agreement represents the entire understanding and
agreement among the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and among such parties, including without limitation the Original Option
Agreement.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
____ day of _____________, 2003.
xxxxxxxx.xxx, inc.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
xxxxxxxx.xxx, inc.
000 X. Xxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Optionee hereby accepts this Option subject to all of the terms and provisions
hereof. Optionee has reviewed this Option in it's entirety, had an opportunity
to obtain the advice of counsel prior to executing this Option and full
understands all provisions of the Option. Optionee hereby agrees to accept as
binding conclusive and final all decisions or interpretations of the Company
upon any questions arising under the Option. Optionee further agrees to notify
the Company upon any changes in the residence address indicated below.
Dated: ______________, 2003
------------------------------------
Xxxxxx X. Xxxxxx
Address:
000 X. Xxxxxxx Xxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
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EXHIBIT A
xxxxxxxx.xxx, inc.
EXERCISE NOTICE
xxxxxxxx.xxx, inc.
Attention: Secretary
1. Exercise of Option. Effective as of today, __________, ______, the
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
_________ shares of the Common Stock (the "Shares") of xxxxxxxx.xxx, inc. (the
"Company") under and pursuant to the Amended & Restated Non-Qualified Stock
Option Agreement dated __________, 200 __, (the "Option Agreement")
2. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Option Agreement. Optionee agrees to abide by
and be bound by their terms and conditions.
3. Rights as Stockholder. Until the stock certificate evidencing such Shares is
issued (as evidenced by the appropriate entry on the books of the Company or of
a duly authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to
Shares subject to the Option, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such stock certificate promptly
after the Option is exercised. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section IV of Article One of the Plan. Optionee
shall enjoy rights as a stockholder until such time as Optionee disposes of the
Shares.
4. Tax Consultation. Optionee understands that Optionee may suffer adverse tax
consequences as a result of Optionee's purchase or disposition of the Shares.
Optionee represents that Optionee has consulted with any tax consultants
Optionee deems advisable in connection with the purchase or disposition of the
Shares and that Optionee is not relying on the Company for any tax advice.
5. Restrictive Legends.
(a) Legends. Optionee understands and agrees that the Company shall
cause any other legends that may be required by state or federal securities laws
to be placed upon any certificate(s) evidencing ownership of the Shares.
(b) Refusal to Transfer. The Company shall not be required (i) to
transfer on its books any shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
6. Successors and Assigns. The Company may assign any of its rights under this
agreement to single or multiple assignees, and this Agreement shall inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this agreement shall be binding upon
Optionee and his or her heirs, executors, administrators, successors and
assigns.
7. Governing Law; Severability. This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware excluding that
body of law pertaining to conflicts of law. Should any provision of this
agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
8. Notices. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States mail by certified mail, with postage and fees prepaid,
addressed to the other party at its address shown below beneath its signature,
or to such other addresses as such party may designate in writing from time to
time with the other party.
9. Further Instruments. The parties agree to execute such further instruments
and to take such further action as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
10. Delivery of Payment. Optionee herewith delivers to the Company the full
Exercise Price for the Shares, as well as any applicable withholding tax.
11. Entire Agreement. The Option Agreement is incorporated herein by reference.
This Agreement and the Option Agreement constitute the entire agreement if the
parties and supersede in their entirety all prior undertakings and agreements of
the Company and Optionee with respect to the subject matter hereof.
Submitted by: Accepted by:
Optionee: xxxxxxxx.xxx, inc.
_______________________________ By:___________________________
Its:__________________________
Address:
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