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Exhibit: 10.4(B)FD
FUNDEX GAMES, LTD.
1996 STOCK OPTION PLAN
FOR
NON-EMPLOYEE DIRECTORS
NONSTATUTORY STOCK OPTION AGREEMENT
FUNDEX GAMES, LTD., a Nevada corporation (the "COMPANY"), hereby grants
to Xxxxxxx Xxxxxx (the "OPTIONEE") an option to purchase a total of Two Thousand
(2,000) shares of Common Stock (the "SHARES") of the Company, at the price set
forth herein, and in all respects subject to the terms and provisions of the
Company's 1996 Stock Option Plan (the "PLAN") applicable to nonstatutory stock
options which terms and provisions are hereby incorporated by reference herein.
Unless otherwise defined or the context herein otherwise requires, capitalized
terms used herein shall have the same meanings ascribed to them in the Plan.
1. NATURE OF THE OPTION. This Option is intended to be a nonstatutory
stock option and is NOT intended to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"CODE"), or to otherwise qualify for any special tax benefits to the Optionee.
2. DATE OF GRANT; TERM OF OPTION. This Option is granted as of October
24, 1997 ("OPTION GRANT DATE"), and it may not be exercised later than October
3, 2006.
3. OPTION EXERCISE PRICE. The Option exercise price is $4.00 per Share,
which price is not less than 85% of the fair market value thereof on the date
this Option was granted.
4. EXERCISE OF OPTION. This Option shall be exercisable during its term
only in accordance with the terms and provisions of the Plan and this Option as
follows:
(a) RIGHT TO EXERCISE. This Option shall vest and be exercisable
on the first anniversary of the Option Grant Date.
(b) METHOD OF EXERCISE. This Option shall be exercisable by
written notice which shall state the election to exercise this Option,
the number of Shares in respect to which this Option is being exercised,
such other representations and agreements as to the Optionee's investment
intent with respect to such Shares as may be required by the Company
hereunder or pursuant to the provisions of the Plan. Such written notice
shall be signed by the Optionee and shall be delivered in person or by
certified mail to the Secretary of the Company or such other person as
may be designated by the Company. The written notice shall be accompanied
by payment of the exercise price and by an executed Stock Purchase
Agreement if required by the Company. Payment of the exercise price shall
be by cash or by check or by such other method of payment as is
authorized by the Board in accordance with the Plan. The certificate or
certificates for the Shares as to which the Option shall be exercised
shall be registered in the name of the Optionee and shall be legended as
set forth in the Plan, and/or as required under applicable law. This
Option may not be exercised for a fraction of a Share.
(c) RESTRICTIONS ON EXERCISE. This Option may not be exercised if
the issuance of the Shares upon such exercise would constitute a
violation of any applicable federal or state securities laws or other
laws or regulations. As a condition to the exercise of this Option, the
Company may require the Optionee to make such representations and
warranties to the Company as may be required by any applicable law or
regulation.
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(d) NO SHAREHOLDER RIGHTS BEFORE EXERCISE AND ISSUANCE. No rights
as a shareholder shall exist with respect to the Shares subject to the
Option as a result of the grant of the Option. Such rights shall exist
only after issuance of a stock certificate in accordance with Section 8
(d) (i) of the Plan following the exercise of the Option as provided in
this Agreement and the Plan.
5. INVESTMENT REPRESENTATIONS. In connection with the acquisition of this
Option, the Optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise of
this Option, he will be acquiring the Shares for investment for his own
account, not as a nominee or agent, and not with a view to, or for resale
in connection with, any distribution thereof.
(b) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or
controlling persons and by reason of his business or financial
experience, has, and could be reasonably assumed to have, the capacity to
evaluate the merits and risks of purchasing Common stock of the Company
and to make an informed investment decision with respect thereto and to
protect Optionee's interests in connection with the acquisition of this
Option and the Shares.
6. TERMINATION OF STATUS AS DIRECTOR. This option shall terminate prior
to the expiration of its term as follows:
(a) One (1) year after you cease to be a Non-Employee Director (as
defined in the Plan) of the Company for any reason other than Termination
For Cause. In the event you become disabled or die while you are, or
within one (1) year after you cease to be, a NonEmployee Director of the
Company, you or your estate or your personal representative may exercise
the option prior to the time such option terminates as provided in the
preceding sentence.
(b) If you cease to be Non-Employee Director for cause, as
determined by the Company's Board of Directors in its sole discretion,
you shall cease to have any right to exercise any option upon such
termination.
7. NONTRANSFERABILITY OF OPTION. This Option may not be sold, pledged,
assigned, hypothecated, gifted, transferred or disposed of in any manner, either
voluntarily or involuntarily by operation of law or otherwise, other than by
will or by the laws of descent or distribution or a transfer between spouses
incident to a "divorce" within the meaning of Section 1041(a) of the Code, and
may be exercised during the lifetime of the Optionee only by such Optionee or
his or her legal guardian. Subject to the foregoing and the terms of the Plan,
the terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
8. CONTINUATION AS DIRECTOR. Neither this Option, the Plan nor any Option
granted thereunder shall confer upon the Optionee any right whatsoever to
continue as Director of the Company or any of its Subsidiaries for any period of
time, or at any particular rate of compensation.
9. WITHHOLDING. The Company reserves the right to withhold, in accordance
with any applicable laws, from any consideration or other amounts payable to the
Optionee any taxes
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required to be withheld by federal, state or local law as a result of the grant
or exercise of this Option or the sale or other disposition of the Shares issued
upon exercise of this Option.
10. THE PLAN. This Option is subject to, and the Company and the Optionee
agree to be bound by, all of the terms and conditions of the Company's Plan as
such Plan may be amended from time to time in accordance with the terms thereof,
provided that no such amendment shall deprive the Optionee, without his consent,
of this Option or any rights hereunder. Pursuant to the Plan, the Board is
authorized to adopt rules and regulations not inconsistent with the Plan as it
shall deem appropriate and proper. A copy of the Plan in its present form is
available for inspection at the Company's principal office during business hours
by the Optionee or the persons entitled to exercise this Option.
11. ENTIRE AGREEMENT. The terms of this Agreement and the Plan constitute
the entire agreement between the Company and the Optionee with respect to the
subject matter hereof and supersede any and all previous agreements between the
Company and the Optionee.
FUNDEX GAMES, LTD., a Nevada corporation
Date: By:
Title:
The Optionee hereby acknowledges receipt of a copy of the Plan, a copy of
which is attached hereto, and represents that he has read and is familiar with
the terms and provisions thereof and of this Agreement, and hereby accepts this
Option subject to and agrees to be bound by all of the terms and provisions of
the Plan and of this Agreement.
Date:
Signature of Optionee
Address
City State Zip Code
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON EXECUTION OF
THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH THE SALE, TRANSFER OR
DISTRIBUTION THEREOF. NO SUCH SALE, TRANSFER OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
