EXHIBIT 4.5
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Option Agreement") is made and
entered into as of the 1st day of April, 1999, by and between Fotoball USA,
Inc., a Delaware corporation (the "Company"), and Integrated Corporate
Relations, Inc., a Connecticut corporation (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 April 1, 1999, by and between the
Company and Optionee, a stock option (the "Option") to purchase 25,000 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 1998 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 $4.20, 120% of
the Fair Market Value (as defined in Paragraph 4 hereof) of the Shares on the
date of such grant (March 31, 1999 closing price), subject to adjustment as
provided in Paragraph 3 below.
(b) Unless the Option is previously terminated or
accelerated pursuant to this Option Agreement, 3,125 shares of the Option shall
vest on the last day of each calendar quarter commencing June 30, 1999 until and
including March 31, 2001. In no event shall any Shares be purchasable under this
Agreement after March 31, 2004 (the "Expiration Date"). The Option shall cease
to be exercisable thirty (30) days after the date of termination of the
Agreement.
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 Board or a committee thereof 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) the mean 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,
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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.
The Board or a committee thereof 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.
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.
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Executive Officer
INTEGRATED CORPORATE RELATIONS, INC..
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Partner
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