EXHIBIT 10.18
NON-QUALIFIED STOCK OPTION AGREEMENT
SECOND AMENDED AND RESTATED
2000 STOCK OPTION PLAN
This Non-Qualified Stock Option Agreement is dated as of ___________,
200_ (the "Option Agreement"), and is made by and between Genius Products, Inc.
(the "COMPANY") and ____________ (the "GRANTEE").
WHEREAS, the Grantee is [a/an] [director / employee / officer /
consultant] of the Company and has rendered [or will render] valuable services
[pursuant to a consulting agreement dated ___, 200_];
WHEREAS, the Company in recognition of such services has granted a
non-qualified option (the "OPTION") to Grantee as set forth therein and herein;
and
WHEREAS, the parties wish to ratify and memorialize the grant and the
terms and conditions by which the Option is governed; and
WHEREAS, the Company has adopted a stock option plan entitled 2000
Second Amended and Restated Non-Qualified Stock Option Plan (the "PLAN")
originally adopted by the board of directors on May 25, 2000, and as amended on
June 12, 2001 and November 20, 2001, under which shares of the Company's common
stock into which the Option is exercisable have been registered with the
Securities and Exchange Commission pursuant to a Form S-8 filed on May 25, 2000,
which will be amended by a subsequent filing of a Form S-8 to include the
current version of the Plan and increasing the number of shares subject to the
Plan;
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
Section 1. GRANT OF OPTION. The Company hereby confirms the grant to
Grantee of the Option to purchase shares of common stock of the Company (the
"SHARES"), subject to the terms and conditions of this Option Agreement and
those of the Plan (which is incorporated herein by reference), as follows:
DATE OF GRANT NO. OF SHARES EXERCISE PRICE VESTING DATE(S) TERM
------------- ------------- -------------- --------------- ----
_________ _________ $_____ _______________ ________
Pursuant to the board resolution contained in a consent dated as of
October 31, 2003, any termination of employment shall not cause the option to
expire any earlier than 10 years after the date of the grant, so long as the
option has fully vested at the time of the termination of employment.
In the event of a conflict between the terms and conditions of the Plan
and this Option Agreement, the terms and conditions of the Plan shall prevail.
This Option is intended to be treated as a non-statutory (non-qualified) stock
option.
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Section 2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option to purchase Shares shall be
exercisable at any time after the applicable Vesting Date and prior to the end
of the Term, subject to the applicable provisions of the Plan and this Option
Agreement.
(b) METHOD OF EXERCISE. This Option shall be exercisable by
delivery of an exercise notice in the form attached hereto as EXHIBIT A (the
"EXERCISE NOTICE") which shall state the election to exercise the Option, the
number of Shares with respect to which the Option is being exercised, and such
other representations and agreements as may be required by the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all exercised Shares. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice accompanied by the
payment of the aggregate Exercise Price.
(c) COMPLIANCE WITH APPLICABLE LAW. No Shares shall be issued
pursuant to the exercise of an Option unless such issuance and such exercise
complies with all applicable laws. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to the Grantee on the date
on which the Option is exercised with respect to such Shares.
Section 3. METHOD OF PAYMENT. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the sole
discretion of the Company:
(a) cash or check;
(b) consideration received by the Company under a formal cashless
exercise program adopted by the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an Option, have been owned by the Grantee for more
than six (6) months on the date of surrender, and (ii) have a fair market value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
Section 4. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Grantee only by
Grantee. The terms of the Plan and this Option Agreement shall be binding upon
the executors, administrators, heirs, successors and assigns of the Grantee.
Section 5. TERM OF OPTION. This Option may be exercised only prior to
the expiration of the Option pursuant to the terms of the Plan and this Option
Agreement and may be exercised during such term only in accordance with the Plan
and the terms of this Option.
Section 6. TAX CONSEQUENCES. Set forth below is a brief summary as of
the date of this Option of some of the federal tax consequences of exercise of
this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
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(a) EXERCISE OF NON-QUALIFIED STOCK OPTION. There may be a regular
federal income tax liability upon the exercise of a Non-Qualified Stock Option.
The Grantee will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the fair market value
of the Shares on the date of exercise over the Exercise Price. If Grantee is an
employee or a former employee, the Company will be required to withhold from
Grantee's compensation or collect from Grantee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation income
at the time of exercise, and may refuse to honor the exercise and refuse to
deliver the Shares if such withholding amounts are not delivered at the time of
exercise.
(b) DISPOSITION OF SHARES. In the case of a Non-Qualified Stock
Option, if Shares are held for at least one year, under current tax law any gain
realized on disposition of the Shares will be treated as long-term capital gain
for federal income tax purposes.
Section 7. ENTIRE AGREEMENT; GOVERNING LAW. The Plan is incorporated
herein by reference. The Plan and this Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Grantee with respect to the subject matter hereof, and may not be modified
adversely to the Grantee's interest except by means of a writing signed by the
Company and Grantee. This agreement is governed by the internal substantive laws
but not the choice of law rules of California.
Section 8. 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 Grantee and his or her heirs, executors, administrators, successors
and assigns.
Section 9. INTERPRETATION. Any dispute regarding the interpretation of
this Agreement shall be submitted by Grantee or by the Company forthwith to the
Administrator which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
all parties.
Section 10. RECEIPT OF PLAN. Grantee acknowledges receipt of a copy of
the Plan and represents that he or she is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all of the terms and
provisions thereof. Grantee has reviewed the Plan and this Option Agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Option
Agreement. Grantee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising
under the Plan or this Option. Grantee further agrees to notify the Company upon
any change in Grantee's residence address.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Stock Option Agreement is executed on behalf
of the Corporation and its duly authorized officer and by Grantee as of the date
first written above.
GRANTEE GENIUS PRODUCTS, INC.
--------------------------------------- By:
[Name of Grantee] ----------------------------------
[Name of Officer]
Its: [Title of Officer]
State of Residence: ________
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EXHIBIT A
---------
[LETTERHEAD OF GRANTEE]
[Date]
Genius Products, Inc.
000 Xxxxx Xxxxx Xx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Corporate Secretary
EXERCISE NOTICE
2000 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
1. EXERCISE OF OPTION. The undersigned ("GRANTEE") hereby elects to
exercise Grantee's option to purchase _________ shares of the Common Stock (the
"SHARES") of Genius Products, Inc. (the "COMPANY") under and pursuant to that
certain plan entitled the Second Amended and Restated 2000 Non-Qualified Stock
Option Plan adopted by the Company originally as of May 25, 2000, and as amended
on June 12, 2001, and November 20, 2001 (the "PLAN") and the Stock Option
Agreement dated [________, 200_] (the "OPTION AGREEMENT").
2. DELIVERY OF PAYMENT. Grantee herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Option Agreement.
3. REPRESENTATIONS OF GRANTEE. Grantee acknowledges that Grantee has
received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. The Grantee is a resident of the State of ____________.
5. The Grantee represents and agrees that if the Grantee is an
"affiliate" (as defined in Rule 144 under the Securities Act of 1933) of the
Corporation at the time the Grantee desires to sell any of the Stock, the
Grantee will be subject to certain restrictions under, and will comply with all
of the requirements of, applicable federal and state securities laws.
6. The foregoing representations and warranties are given on
____________, 200_, at ____________, ___________.
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7. RIGHTS AS SHAREHOLDER. Until the issuance of the Shares (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 shareholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Shares shall be issued to the
Grantee as soon as practicable after the Option is exercised.
8. TAX CONSULTATION. Grantee understands that Grantee may suffer
adverse tax consequences as a result of Grantee's purchase or disposition of the
Shares. Grantee represents that Grantee has consulted with any tax consultants
Grantee deems advisable in connection with the purchase or disposition of the
Shares and that Grantee is not relying on the Company for any tax advice.
9. TRANSFER RESTRICTIONS; STOP-TRANSFER ORDER.
(a) REFUSAL TO TRANSFER. Grantee acknowledges and agrees that 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 the Option Agreement or the Plan 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.
(b) STOP-TRANSFER NOTICES. Grantee agrees that, in order to ensure
compliance with the restrictions referred to in the Option Agreement,
the Company may issue appropriate "stop transfer" instructions to its
transfer agent, if any, and that, if the Company transfers its own
securities, it may make appropriate notations to the same effect in its
own records.
Submitted by: Accepted by:
GRANTEE GENIUS PRODUCTS, INC.
By:
--------------------------------------- ----------------------------------
Signature Name:
--------------------------------
Title:
-------------------------------
--------------------------------------- --------------------------------------
Print Name Date received
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