EXHIBIT 4.7
XXXXXXXX.XXX, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
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THIS AGREEMENT, made as of the 15th day of April, 1999 (the
"Grant Date"), by and between xxxxxxxx.xxx, inc. (the "Company"), and _____
_____ (the "Optionee").
WHEREAS, this Option is being granted pursuant to the Employment
Agreement, dated April 15th, 1999, between Attitude Network, Ltd.
("Attitude"), the Company and the Optionee (the "Employment Agreement") and
is not being granted pursuant to the xxxxxxxx.xxx, inc. 1998 Stock Option
Plan (the "Plan").
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
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1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate of 25,000
whole Shares subject to, and in accordance with, the terms and conditions
set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code.
1.3 This Agreement is subject to the Employment Agreement (the
provisions of which are incorporated herein by reference) and, except as
otherwise expressly set forth herein, the capitalized terms used in this
Agreement shall have the same definitions as set forth in the Employment
Agreement.
2. Purchase Price.
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The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $67.625 per Share (the
Fair Market Value of a Share on the Grant Date).
3. Duration of Option.
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The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten (10) years from the Grant Date (the
"Exercise Term"); provided, however, that the Option may be earlier
terminated as provided in Section 6 hereof; provided, further, that the
Option may, upon the death of the Optionee, be later exercised for up to
one (1) year following the date of the Optionee's death if such death
occurs prior to the tenth anniversary of the Grant Date.
4. Exercisability of Option.
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Unless otherwise provided in this Agreement, the Option shall
entitle the Optionee to purchase, in whole at any time or in part from time
to time, subject to the Optionee's continued employment with Attitude, the
Company or a Subsidiary, 100% of the total number of Shares covered by the
Option less the number of Shares previously acquired upon exercise of any
portion of the Option on and after the first anniversary of the Grant Date.
5. Manner of Exercise and Payment.
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5.1 Subject to the terms and conditions of this Agreement, the
Option may be exercised by written notice delivered in person or by mail to
the Controller of the Company, at its principal executive offices, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000. Such notice shall be substantially in the
form attached hereto as Exhibit A, shall state that the Optionee is
electing to exercise the Option and the number of Shares in respect of
which the Option is being exercised and shall be signed by the person or
persons exercising the Option. If requested by the Committee, such person
or persons shall (i) deliver this Agreement to the Secretary of the Company
who shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to exercise
the Option.
5.2 The notice of exercise described in Section 5.1 hereof shall
be accompanied by the full purchase price for the Shares in respect of
which the Option is being exercised, in cash, or, if permitted by the
Committee, by transferring Shares, either actually or by attestation, to
the Company having a Fair Market Value on the day preceding the date of
exercise equal to the cash amount for which such Shares are substituted. In
addition, Options may be exercised through a registered broker-dealer
pursuant to such cashless exercise procedures which, from time to time, are
deemed acceptable by the Committee.
5.3 Upon receipt of notice of exercise and full payment for the
Shares in respect of which the Option is being exercised, the Company
shall, subject to Section 16 hereof, take such action as may be necessary
to effect the transfer to the Optionee of the number of Shares as to which
such exercise was effective. No fractional Shares (or cash in lieu thereof)
shall be issued upon exercise of an Option and the number of Shares that
may be purchased upon exercise shall be rounded to the nearest number of
whole Shares.
5.4 The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Optionee shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company, whereupon the Optionee
shall have full voting and other ownership rights with respect to such
Shares, subject to the terms of this Agreement.
6. Termination of Option. Subject to Section 7 hereof, the Option
shall terminate on the date which is the tenth anniversary of the Grant
Date (or if later, the first anniversary of the date of the Optionee's
death if such death occurs prior to such tenth anniversary), unless
terminated earlier as follows:
6.1 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated by mutual agreement of the parties hereto, by
Attitude , the Company or a Subsidiary for any reason other than
Disability, death or Cause, by the Optionee for any reason, or if Attitude
or the Subsidiary then employing the Optionee ceases to be a Subsidiary,
the Optionee may for a period of three (3) months after such termination or
cessation exercise his Option to the extent, and only to the extent, that
such Option or portion thereof was exercisable as of the date of such
termination or cessation, after which time the Option shall automatically
terminate in full; provided, however, that if at the time the Optionee
terminates his employment, the Optionee had engaged in conduct constituting
Cause, the Option shall immediately terminate in full and no rights
hereunder may be exercised.
6.2 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated by reason of Disability, the Optionee may, for a
period of twelve (12) months after such termination, exercise the Option to
the extent, and only to the extent, that such Option or portion thereof was
exercisable, as of the date of such termination, after which time the
Option shall automatically terminate in full.
6.3 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated for Cause before the first anniversary of the
date of the Employment Agreement, the Option shall immediately terminate in
full and no rights hereunder may be exercised.
6.4 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated by reason of his death, the Option may be
exercised at any time within twelve (12) months after the Optionee's death
by the person or persons to whom such rights under the Option shall pass by
will, or by the laws of descent or distribution, after which time the
Option shall terminate in full; provided, however, that an Option may be
exercised to the extent, and only to the extent, that the Option or portion
thereof was exercisable on the date of death. If the Optionee dies within
three (3) months after termination as described in Section 6.1 hereof or
within twelve (12) months after termination as described in Section 6.2
hereof, the Option granted to the Optionee may be exercised at any time
within twelve (12) months after the Optionee's death by the person or
persons to whom such rights under the Option shall pass by will, or by the
laws of descent or distribution, after which time the Option shall
terminate in full; provided, however, that an Option may be exercised to
the extent, and only to the extent, that the Option or portion thereof was
exercisable on the date of termination.
6.5 The Option, to the extent not exercisable, shall terminate
immediately upon the Optionee's termination of employment with Attitude,
the Company or a Subsidiary for any reason.
6.6 For purposes of this Section 6, the Optionee shall not be
treated as terminated for so long as he is an employee of Attitude, the
Company or a Subsidiary.
7. Effect of Change in Control.
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Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control, the Option shall become
immediately and fully exercisable. In the event an Optionee's employment
terminates following a Change in Control, the Option shall remain
exercisable until the earlier of the first anniversary of the termination
of the Optionee's employment or the expiration of the stated term of the
Option.
8. Non-Transferability.
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The Option shall not be transferable other than by will or by the
laws of descent and distribution or pursuant to a domestic relations order
(within the meaning of Rule 16a-12 promulgated under the Exchange Act), and
the Option shall be exercisable during the lifetime of the Optionee only by
the Optionee or his guardian or legal representative.
9. Limitation on Rights.
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Nothing in this Agreement shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of
employment by Attitude, the Company or any of its or their affiliates, nor
shall this Agreement interfere in any way with the right of Attitude, the
Company or any of its or their affiliates to terminate the Optionee's
employment at any time.
10. Adjustments.
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10.1 In the event of a Change in Capitalization, the Committee
shall make appropriate adjustments, if any, 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. The Committee's
adjustment shall be effective and final, binding and conclusive for all
purposes of this Agreement.
10.2 If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise the Option with respect to new, additional or
different shares of stock or securities, such new, additional or different
shares shall thereupon be subject to all of the conditions and restrictions
which were applicable to the Shares subject to the Option prior to such
Change in Capitalization.
11. Effect of a Merger, Consolidation or Liquidation.
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Subject to Section 7 hereof, upon the effective date of (i) the
liquidation or dissolution of the Company or (ii) a merger or consolidation
of the Company (a "Transaction"), the Option shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of all Shares subject to the Option, upon exercise of the Option,
the same number and kind of stock, securities, cash, property or other
consideration that each holder of Shares was entitled to receive in the
Transaction in respect of a Share; provided, however, that such stock,
securities, cash, property, or other consideration shall remain subject to
all of the conditions and restrictions which were applicable to the Option
prior to such Transaction.
12. Withholding of Taxes.
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At such times as the Optionee recognizes taxable income in
connection with the receipt of Shares hereunder (a "Taxable Event"), the
Optionee shall pay to the Company an amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be
withheld by the Company in connection with the Taxable Event (the
"Withholding Taxes") prior to the issuance of such Shares. The Company and
Attitude shall have the right to deduct from any distribution of cash to
the Optionee an amount equal to the Withholding Taxes with respect to the
Option.
13. Pooling Transactions.
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Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control which is also intended to
constitute a Pooling Transaction, the Committee shall take such actions, if
any, as are specifically recommended by an independent accounting firm
retained by the Company to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including but not
limited to (a) deferring the vesting, exercise, payment, settlement or
lapsing of restrictions with respect to the Option, (b) providing that the
payment or settlement in respect of the Option be made in the form of cash,
Shares or securities of a successor or acquirer of the Company, or a
combination of the foregoing, and (c) providing for the extension of the
term of any Option to the extent necessary to accommodate the foregoing,
but not beyond the maximum term permitted for any Option.
14. Modification of Agreement.
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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.
15. Severability.
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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.
16. Registration of Shares.
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16.1 Prior to the time that the Option first becomes exercisable
in accordance with the terms of this Agreement, the Company shall cause the
Shares underlying the Option to be registered with the Securities and
Exchange Commission and listed on the National Association of Securities
Dealers Automated Quotation System if not already listed. The Option is
subject to the requirement that, if at any time the Committee determines,
in its discretion, that the listing, registration or qualification of
Shares issuable pursuant to this Agreement is required by any securities
exchange or under any state or federal law, or the consent or approval of
any governmental regulatory body is necessary or desirable as a condition
of, or in connection with, the issuance of Shares, no payment shall be made
or Shares issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of
any conditions as acceptable to the Committee. The Board may make such
changes to the Option as may be necessary or appropriate to comply with the
rules and regulations of any governmental authority.
16.2 Notwithstanding anything contained in this Agreement to the
contrary, in the event that the disposition of Shares acquired pursuant
this Agreement is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is
not otherwise exempt from such registration, such Shares shall be
restricted against transfer to the extent required by the Securities Act
and Rule 144 or other regulations thereunder. The Committee may require the
Optionee, as a condition precedent to receipt of Shares hereunder, to
represent and warrant to the Company in writing that the Shares acquired by
him are acquired without a view to any distribution thereof and will not be
sold or transferred other than pursuant to an effective registration
thereof under said Act or pursuant to an exemption applicable under the
Securities Act or the rules and regulations promulgated thereunder. The
certificates evidencing any of such Shares shall be appropriately amended
to reflect their status as restricted securities as aforesaid.
17. Governing Law.
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17.1 The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Delaware
without giving effect to the conflicts of laws principles thereof.
17.2 The obligation of the Company to sell or deliver Shares
covered by the Option shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws,
and the obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Committee.
18. Successors in Interest.
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This Agreement shall inure to the benefit of and be binding upon
any successor to the Company. This Agreement shall inure to the benefit of
the Optionee's legal representatives. All obligations imposed upon the
Optionee and all rights granted to the Company under this Agreement shall
be final, binding and conclusive upon the Optionee's heirs, executors,
administrators and successors.
19. Resolution of Disputes.
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Any dispute or disagreement which may arise under, or as a result
of, or in any way relate to, the interpretation, construction or
application of this Agreement shall be determined by the Committee. Any
determination made hereunder shall be final, binding and conclusive on the
Optionee and the Company for all purposes.
20. Interpretation.
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20.1 The grant of the Option pursuant hereto is intended to
comply with Rule 16b-3 promulgated under the Exchange Act and the Committee
shall interpret and administer the provisions of this Agreement in a manner
consistent therewith. Any provisions inconsistent with such rule shall be
inoperative and shall not affect the validity of this Agreement.
20.2 The Option is intended to be Performance-Based Compensation.
The Committee shall not be entitled to exercise any discretion otherwise
authorized hereunder with respect to this Option if the ability to exercise
such discretion or the exercise of such discretion itself would cause the
compensation attributable to this Option to fail to qualify as
Performance-Based Compensation.
21. Administration.
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21.1 This Agreement shall be administered by the Committee. The
Committee shall consist of at least two (2) Directors and may consist of
the entire Board; provided, however, that (A) if the Committee consists of
less than the entire Board, each member shall be a Nonemployee Director and
(B) to the extent necessary for any Option intended to qualify as
Performance-Based Compensation to so qualify, each member of the Committee,
whether or not it consists of the entire Board, shall be an Outside
Director. For purposes of the preceding sentence, if one or more members of
the Committee is not a Nonemployee Director and an Outside Director but
recuses himself or herself or abstains from voting with respect to a
particular action taken by the Committee, then the Committee, with respect
to that action, shall be deemed to consist only of the members of the
Committee who have not recused themselves or abstained from voting.
21.2 No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with
respect to this Agreement. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the extent
permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiating for the settlement of or
otherwise dealing with any claim, cause of action or dispute of any kind
arising in connection with any actions in administering this Agreement or
in authorizing or denying authorization to any transaction hereunder.
21.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
(a) to construe and interpret this Agreement and to
establish, amend and revoke rules and regulations for the administration of
this Agreement, including, but not limited to, correcting any defect or
supplying any omission, or reconciling any inconsistency in this Agreement,
in the manner and to the extent it shall deem necessary or advisable,
including so that this Agreement complies with Rule 16b-3 under the
Exchange Act, the Code to the extent applicable and other applicable law,
and otherwise to make this Agreement fully effective. All decisions and
determinations by the Committee in the exercise of this power shall be
final, binding and conclusive upon the Company, its Subsidiaries, the
Optionee, and all other persons having any interest herein;
(b) to determine the duration and purposes for leaves of
absence which may be granted to the Optionee on an individual basis without
constituting a termination of employment or service for purposes of this
Agreement;
(c) to exercise its discretion with respect to the powers
and rights granted to it as set forth in this Agreement; and
(d) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to this Agreement.
22. Definitions.
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For purposes of this Agreement:
22.1 "Board" means the Board of Directors of the Company.
22.2 "Cause" shall have the meaning ascribed to it in the
Employment Agreement.
22.3 "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.
22.4 A "Change in Control" shall mean the occurrence of any of
the following:
(a) 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) of thirty percent (30%) 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 22.4(a), 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, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(b) The individuals who, as of the date hereof are members
of the Board of Directors of the Company (the "Incumbent Board"), cease for
any reason to constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for election by the
Company's common stockholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member of the Incumbent
Board; or
(c) The consummation of:
(i) 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:
(A) 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,
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at
least two-thirds of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially directly or indirectly owning a
majority of the Voting Securities of the Surviving Corporation, and
(C) 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 or its common stock.
(ii) A complete liquidation or dissolution of the
Company; or
(iii) 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.
22.5 "Code" means the Internal Revenue Code of 1986, as amended.
22.7 "Committee" means the committee, appointed by the Board from
time to time to administer the Plan and to perform the functions set forth
therein.
22.8 "Director" means a director of the Company.
22.9 "Disability" shall have the meaning ascribed to it in the
Employment Agreement.
22.10 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
22.11 "Fair Market Value" on any date means the closing sales
prices of the Shares on such date on the principal national securities
exchange on which such Shares are listed or admitted to trading, or, if
such Shares are not so listed or admitted to trading, the average of the
per Share closing bid price and per Share 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, or, if there have been no published bid or asked quotations with
respect to Shares on such date, the value established by the Committee in
good faith.
22.12 "Nonemployee Director" means a director of the Company who
is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
22.13 "Outside Director" means a director of the Company who is
an "outside director" within the meaning of Section 162(m) of the Code and
the regulations promulgated thereunder.
22.14 "Performance-Based Compensation" means any Option that is
intended to constitute "performance-based compensation" within the meaning
of Section 162(m)(4)(C) of the Code, and the regulations promulgated
thereunder.
22.15 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of
interests" under generally accepted accounting principles.
22.16 "Shares" means the common stock, par value $0.001 per
share, of the Company.
22.17 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect
to the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
xxxxxxxx.xxx, inc.
By:
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Name:
Title:
Attest:
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Secretary
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[Optionee]
Exhibit A
NOTICE OF EXERCISE
xxxxxxxx.xxx, inc.
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000 Date of Exercise:
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Ladies and Gentlemen:
This constitutes notice under my Nonqualified Stock Option Agreement
(the "Option Agreement") that I elect to purchase the number of shares for
the price set forth below.
Stock option dated: _____________________
Number of shares as to
which option is exercised: _____________________
Certificates to be issued
in name of: ______________________
Total exercise price: $ ____________________
Cash payment delivered
herewith: $ ____________________
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms the Option Agreement, and (ii) to
provide for the payment by me to you (in the manner designated by you) of
your withholding obligation, if any, relating to the exercise of this
option.
Very truly yours,
[Name]
Address:
