STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Option Agreement") is made and entered
into as of the 30th day of January, 1998, by and between Fotoball USA, Inc.,
a Delaware corporation (the "Company"), and Xxxxxxxxx X. XxXxxxxx (the
"Optionee").
The Board of Directors (the "Board") of the Company adopted a resolution
granting the Optionee, subject to the terms contained in that certain
agreement (the "Agreement") dated as of January 30, 1998, by and between the
Company and Optionee, a stock option (the "Option") to purchase 2,500 shares
(the "Shares"), of the Company's common stock, par value $.01 per share (the
"Common Stock"), on the terms and subject to the conditions set forth in the
Agreement. The Option was not granted under the Company's 1994 Stock Option
Plan.
The Option is not intended to satisfy the requirements for an incentive
stock option under Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"). The Company makes no representations or warranties as
to the income, estate or other tax consequences to the Optionee of the grant
or exercise of the Option or the sale or other disposition of the Shares
acquired pursuant to the exercise thereof.
1. (a) The price at which the Optionee shall have the right to purchase
the Shares under this Option Agreement shall be $1.375, the Fair Market Value
(as defined in Paragraph 4 hereof) of the Shares on the date of such grant,
subject to adjustment as provided in Paragraph 3 below.
(b) The Option is immediately exercisable. In no event shall any
Shares be purchasable under this Agreement after January 30, 2008 (ten (10)
years after the Date of Grant)(the "Expiration Date"). Except as provided in
subparagraph (c) hereof, the Option shall cease to be exercisable three (3)
months after the date the Optionee ceases to be a non-employee director of
the Company or any affiliate of the Company, and all rights of the Optionee
hereunder shall thereupon terminate.
(c) If the Optionee ceases to be a non-employee director of the
Company or any affiliate of the Company and this cessation is due to retirement
(as defined by the Board in its sole discretion), or to mental or physical
disability (as defined in each case by the Board in its sole discretion) or
to death, the Option shall be exercisable as provided in this subparagraph.
The Optionee or, in the event of his mental or physical disability, if
permissible under applicable law, his duly appointed guardian or legal
representative or, in the event of his death, his executor or administrator
shall have the privilege of exercising the unexercised portion of the Option
which the Optionee could have exercised on the day on which he ceased to be a
non-employee director of the Company or any affiliate of the Company; provided,
however, that such exercise must be in accordance with the terms of this
Agreement and within (i) three (3) months after the date on which the
Optionee ceases to be a non-employee director of the Company or any affiliate
of the Company by reason of the Optionee's retirement or mental or physical
disability or (ii) (A) twelve (12) months after the date on which the
Optionee ceases to be a non-employee director of the Company or any affiliate
of the Company by reason of the Optionee's death or (B) three (3) months
after the date on which the Optionee ceases to be a non-employee director of
the Company or any affiliate of the Company by reason of the Optionee's death
if such death occurs during the three (3) month period following the date on
which the Optionee ceases to be a non-employee director of the Company or
any affiliate of the Company by reason of retirement or mental or physical
disability, as the case may be. In no event, however, shall the Optionee,
his duly appointed guardian or legal representative, or his executor or
administrator, as the case may be, exercise the Option after the
Expiration Date. Nothing contained herein shall be construed to confer on
the Optionee any Right to continue as a director of the Company.
2. (a) Subject to Section 422 of the Code, neither the Option nor any
right under the Option shall be assignable, alienable, saleable or
transferable by the Optionee without the written consent of the Company, or
by the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder.
(b) The Option shall not be pledged, alienated, attached, or
otherwise encumbered or transferred in any manner without the written consent
of the Company, and any purported pledge, alienation, attachment, encumbrance,
or transfer thereof without the written consent of the Company shall be void
and unenforceable against the Company.
3. In the event that the Committee shall determine that the outstanding
shares of Common Stock are affected by any (i) subdivision or consolidation
of shares, (ii) dividend or other distribution (whether in the form of cash,
Shares, other securities, or other property), (iii) recapitalization or other
capital adjustment of the Company or (iv) merger, consolidation or other
reorganization of the Company or other rights to purchase Shares or other
securities of the Company, or other similar corporate transaction or event,
such that an adjustment is determined by the Board or a committee thereof to
be appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available hereunder, then the Board or
a committee thereof shall, in such manner as it may deem necessary to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made hereunder, adjust any or all of(x) the number and type of Shares which
may be subject to the Option, (y) the number and type of Shares subject to
the unexercised portion of the Option, and (z) the grant, purchase, or
exercise price with respect to the Option or, if deemed appropriate, make
provision for a cash payment to the Optionee. In computing any adjustment
under this paragraph, any fractional share shall be eliminated; provided,
however, in each case, that (i) each such adjustment shall be made in such
manner as not to constitute a cancellation and reissuance of a Non-Qualified
Stock Option for purposes of Section 162(m) of the Code, or the regulations
promulgated thereunder, to the extent that such reissuance would result in
the grant of such Options in excess of the maximum permitted to be granted to
the Optionee in any fiscal year; and (ii) the number of Shares subject to any
Option denominated in Shares shall always be a whole number.
4. Subject to the term of the Agreement, the Option shall be exercised
when written notice of such exercise, signed by a duly authorized officer of
the entity entitled to exercise the Option, has been delivered or transmitted
by registered or certified mail, to the Secretary of the Company at its
principal office. Said written notice shall specify the number of Shares
purchasable under the Option which such entity then wishes to purchase and
shall be accompanied by such documentation, if any, as may be required by the
Company as provided in Paragraph 6 below and be accompanied by payment of the
aggregate Option price. Such payment of the aggregate Option price shall be,
without limitation, in the form of cash, Shares, outstanding Options or other
consideration, or any combination thereof, having a Fair Market Value on the
exercise date equal to the exercise price of the Option or portion thereof
being exercised. Delivery of said notice and such documentation shall
constitute an irrevocable election to purchase the Shares specified in said
notice and the date on which the Company receives said notice and documentation
shall, subject to the provisions of Paragraphs 5 and 6 hereof, be the date as
of which the Shares so purchased shall be deemed to have been issued. The
person entitled to exercise the Option shall not have the right or status as
a holder of the Shares to which such exercise relates prior to receipt by
the Company of such payment, notice and documentation. For purposes of
this Agreement, "Fair Market Value" shall mean, with respect to Shares or
other securities, (i) the closing price per Share of the Shares on the
principal exchange on which the Shares are then trading, if any, on such
date, or, if the Shares were not traded on such date, then on the next
preceding trading day during which a sale occurred; or (ii) if the Shares
are not traded on an exchange but are quoted on the NASDAQ National Market
("NASDAQ") or a successor quotation system, (1) the last sales price (if
the Shares are then listed on NASDAQ) or (2) themean between the closing
representative bid and asked prices (in all other cases) for the Shares on
such date as reported by NASDAQ or a successor quotation system; or (iii)
if the Shares are not publicly traded on an exchange and not quoted on
NASDAQ or a successor quotation system, the mean between the closing bid
and asked prices for the Shares on such date as determined in good faith
by the Board or a committee thereof; or (iv) if the Shares are not
publicly traded, the fair market value established by the Board or a
committee thereof acting in good faith.
5. Anything in this Agreement to the contrary notwithstanding, in no
event may the Option be exercisable if the Company shall, at any time and in
its sole discretion, determine that (i) the listing, registration or
qualification of any Shares otherwise deliverable upon such exercise, upon
any securities exchange or under any state or federal law, or (ii) the
consent or approval of any regulatory body or the satisfaction of withholding
tax or other withholding liabilities is necessary or desirable in connection
with such exercise. In such event, such exercise shall be held in abeyance
and shall not be effective unless and until such withholding, listing,
registration, qualification, consent, or approval shall have been affected or
obtained free of any conditions not acceptable to the Company.
6. The Committee may require as a condition to the right to exercise the
Option hereunder that the Company receive from the person exercising the
Option, representations, warranties and agreements, at the time of any such
exercise, to the effect that the Shares are being purchased for investment
only and without any present intention to sell or otherwise distribute such
Shares and that the Shares will not be disposed of in transactions which, in
the opinion of counsel to the Company, would violate the registration
provisions of the Securities Act of 1933, as then amended, and the rules and
regulations thereunder. The certificate issued to evidence such Shares shall
bear appropriate legends summarizing such restrictions on the disposition
thereof.
7. All certificates for Shares delivered pursuant to the Option or the
exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Board or a committee thereof may deem advisable under the
rules, regulations, and other restrictions of the Securities and Exchange
Commission, any stock exchange upon which such Shares or other securities are
then listed, and any applicable federal or state securities laws, and the
Board or a committee thereof may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
8. This Agreement shall be construed and enforced in accordance with the
laws of the State of Delaware and applicable federal law. Subject to
subparagraph 2(a) hereof, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors or assigns, as the case may be.
IN WITNESS WHEREOF, the parties have witnessed this Agreement to be duly
executed and delivered as of the date first above written.
FOTOBALL USA, INC.
By: /s/ Xxxxxxxxx X. XxXxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxxxxxx X. XxXxxxxx Xxxxx X. Xxxxxxx
Executive Vice President &
Chief Financial Officer
