Exhibit 4.06
SILVERSTAR HOLDINGS, LTD.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT dated as of _____ __, 2004 (this "Option
Agreement"), by and between SILVERSTAR HOLDINGS, LTD., a Bermuda corporation
(the "Company") and __________ (the "Optionee"). Subject to all of the terms and
conditions contained in this Option Agreement, the Company hereby grants to the
Optionee options to purchase shares of the Company's common stock, par value
$0.01 per share (the "Common Stock") as follows:
1. Options. The Company hereby grants to the Optionee options to
purchase from the Company up to _______ (_____) shares of Common Stock
(collectively, the "Options") upon the following terms and conditions:
(a) Term of Options. The Options shall have a term of ____
(__) years from the date of hereof.
(b) Vesting of Options. The Options shall vest according to
the following vesting schedule:
(c) Exercise Price. The exercise price for the shares
underlying the Options (the "Exercise Price") shall be $____ per share.
(d) Options Non-Transferable. The rights with respect to the
Options are non-transferable and are personal to the Optionee and may be
exercised only by the Optionee and by no one else.
2. Securities Act, Etc. In the absence of an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), the Company
shall not be required to register a transfer of shares delivered or deliverable
upon exercise of the Options (the "Delivered Shares") on its books unless the
Company shall have been provided with an opinion of counsel in form, substance
and scope reasonably satisfactory to the Company (such legal counsel also to be
reasonably satisfactory to the Company) prior to such transfer that registration
under the Act is not required in connection with the transaction resulting in
such transfer. Each certificate evidencing the Delivered Shares or issued upon
any transfer of the Delivered Shares shall bear an appropriate restrictive
legend. Nothing in this Section 2 shall modify or otherwise affect the
provisions applicable to the Delivered Shares.
3. Exercise, Etc. Subject to the provisions of this Option Agreement,
the Options may, to the extent exercisable but not previously exercised, be
exercised at any time and from time to time, in whole or in part, by written
notice delivered to the Company at its principal office signed by the Optionee.
Such notice shall state which option is being exercised, the number of shares of
Common Stock in respect to which the Options are being exercised, and shall
contain representations and warranties of the Optionee as the Company may then
deem necessary or desirable in order to comply with federal or state securities
laws or as may otherwise be reasonably requested by the Company, and shall be
accompanied either by (i) payment in full (in cash, by certified check or by any
other method acceptable to the Company) of the full aggregate Exercise Price in
respect thereof or (ii) delivery to the Company of a number of shares of Common
Stock owned by the Optionee and having a fair market value equal to the full
Exercise Price in respect thereof. In addition, the Company shall have the right
to require that the Optionee when exercising the Options in whole or in part,
remit to the Company an amount sufficient to satisfy any federal, state or local
withholding tax requirements or make other arrangements satisfactory to the
Company with regard to such taxes prior to the delivery of any Delivered Shares
pursuant to such exercise. As soon as practicable after such notice and payment
shall have been received, the Company shall deliver a certificate or
certificates representing the number of Delivered Shares with respect to which
the Options were exercised, registered in the name of the Optionee or such other
name as the Optionee shall direct. All Delivered Shares that shall be purchased
upon the exercise of the Options as provided herein shall be validly issued,
fully paid and non-assessable.
4. Certain Conditions. In the event the Company (i) subdivides its
outstanding shares of Common Stock into a greater number of shares, (ii)
combines its outstanding shares of Common Stock into a smaller number of shares,
(iii) makes a distribution on its Common Stock in shares of its capital stock
other than Common Stock, (iv) issues by reclassification of its Common Stock any
shares of its capital stock, or (v) consummates any merger, reorganization or
consolidation pursuant to which any securities or other consideration is issued
to the holders of outstanding shares of Common Stock of the Company (each an
"Adjustment Event"), then the Options granted to the Optionee hereunder shall so
be adjusted and upon the exercise of such Options, the Optionee shall be
entitled to receive such securities of the Company or other considerations as
the Optionee would have held immediately after the consummation of such
Adjustment Event had the Delivered Shares issuable upon such exercise been held
by the Optionee on such record date.
5. Options Confers No Rights as Shareholder. The Optionee shall not be
entitled to any privileges of ownership with respect to, and shall not be
treated as the owner of, the shares of Common Stock underlying the Options
except to the extent that the Optionee acquires such Common Stock through the
exercise of the Options.
6. Decisions of the Board of Directors. A committee (the "Committee")
of the Board of Directors of the Company (as defined in the SILVERSTAR HOLDINGS,
LTD. 2004 Stock Incentive Plan, as amended (the "Plan")) shall have the
exclusive right to resolve all questions which may arise in connection with this
Option Agreement, the Options or the exercise thereof. Any interpretation,
determination or other action made or taken by the Committee regarding this
Option Agreement, the Options or the exercise thereof shall be final, binding
and conclusive on the Optionee and not subject to judicial review.
7. No Conflict. In the event of a conflict between the terms of this
Option Agreement and the Plan, a copy of which is attached hereto as Exhibit A,
the terms of this Option Agreement shall control.
8. Miscellaneous.
(a) The Options may not be assigned or transferred, in whole
or in part, whether by operation of law, upon death or otherwise, by the
Optionee without the written consent of the Company which the Company may
withhold it its sole and absolute discretion, with or without any reason.
(b) You are urged to consult with your individual tax advisor
prior to exercising the Options since the exercise of the Options may result in
adverse tax consequences including the payment of additional federal and/or
state income taxes. The Options shall be governed by and construed in accordance
with the laws of Bermuda.
(c) Governing Law; Jurisdiction. THIS OPTION AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF BERMUDA APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN BERMUDA, WITHOUT REGARD OR REFERENCE
TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THIS OPTION AGREEMENT SHALL BE CONSTRUED
AND INTERPRETED WITHOUT REGARD TO ANY PRESUMPTION AGAINST THE PARTY CAUSING THIS
AGREEMENT TO BE DRAFTED. EACH OF THE PARTIES UNCONDITIONALLY AND IRREVOCABLY
CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF BERMUDA WITH RESPECT TO
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
EACH OF THE PARTIES WAIVE ANY RIGHT TO CONTEST THE VENUE OF SAID COURTS OR TO
CLAIM THAT SAID COURTS CONSTITUTE AN INCONVENIENT FORUM. EACH OF THE PARTIES
UNCONDITIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS OPTION AGREEMENT.
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IN WITNESS WHEREOF, each of the Company and the Optionee has executed
this Option Agreement as of the date first above written.
SILVERSTAR HOLDINGS, LTD.
By:
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Name: Xxxxx Xxxxxxxxx
Title: President
OPTIONEE
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