EXHIBIT 4.3
NONQUALIFIED STOCK OPTION AGREEMENT
-----------------------------------
pursuant to the
ASD SYSTEMS, INC. 1999 LONG TERM INCENTIVE PLAN
This NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made and entered
into by and between ASD SYSTEMS, INC., a Texas Corporation (the "Company"), and
______________ (the "Optionee"), effective as of ___________, ______ (the "Date
of Grant").
1. Grant of Option. The Company hereby grants to the Optionee and the
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Optionee hereby accepts, subject to the terms and conditions hereof, a
nonqualified stock option (the "Option") to purchase up to _______ shares of
Company's Series B Common Stock (the "Common Stock") at the Exercise Price per
share set forth in Section 4 below. The Optionee acknowledges that the Common
Stock is nonvoting.
2. Governing Plan. This Option is granted pursuant to the Company's 1999
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Long Term Incentive Plan (the "Plan"), a copy of which is attached hereto.
Capitalized terms used but not otherwise defined herein have the meanings as set
forth in the Plan. The Optionee agrees to be bound by the terms and conditions
of the Plan, which are incorporated herein by reference and which control in
case of any conflict with this Agreement.
3. Expiration of the Option. The Option (to the extent not earlier
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exercised or terminated due to cessation of the Optionee's employment or
otherwise in accordance with the Plan) will expire at the end of business on
_______, 20__, _____ (___) years from the Date of Grant of the option. The
Option may terminate sooner under certain circumstances, including, without
limitation, termination of the Optionee's employment or other relationship with
the Company, as set forth in Section 5.13 (Just Cause Dismissal, death, normal
retirement, Permanent Disability and termination other than for Just Cause
Dismissal) of the Plan. The Option may not be exercised after its expiration or
termination.
4. Exercise Plan. The "Option Price" of the Option is $_____ per share of
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Common Stock. The Exercise Price is subject to adjustment as set forth in
Section 6.2 of the Plan.
5. Vesting. On each Measurement Date set forth in Column 1 below, the
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Option shall vest and become exercisable for the corresponding number of shares
of Common Stock set forth in Column 2 below if the Optionee's employment has not
terminated. The "Vested Portion" of the Option as of any particular date shall
be the cumulative total of all shares for which the Option has become
exercisable as of that date.
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Column 1 Column 2
Shares Vesting on Measurement
Measurement Date Date
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Notwithstanding the foregoing, in the event the Optionee's employment with
the Company and/or its subsidiaries is terminated within one (1) year after a
"Change in Control" then, immediately prior to the effective date of such
termination, all Options which have not lapsed, shall become fully vested and
exercisable (if not already vested and exercisable) by Optionee for a period of
thirty (30) days thereafter. In addition, upon a Change in Control, pursuant to
Section 7.2 of the Plan, this Option shall
1
be automatically converted into the right to receive, and thereafter shall be
exercisable for, in accordance with the Plan and this Agreement, the securities,
cash and/or other consideration that a holder of the shares underlying the
Options would have been entitled to receive upon consummation of a Change in
Control had such shares been issued and outstanding immediately prior to the
effective date and time of the Change in Control (net of appropriate exercise
prices). The phrase "Change in Control" used but not otherwise defined herein
has the meaning set forth in Article VIII of the Plan.
6. Exercise of the Option. The Vested Portion (as herein defined) of the
----------------------
Option may be exercised, to the extent not previously exercised, in whole or in
part, at any time or from time to time prior to the expiration or termination of
the Option, except that no Option shall be exercisable except in respect to
whole shares, and not less than one hundred (100) shares may be purchased at one
time unless the number purchased is the total number at the time available for
purchase under the terms of the Option. Exercise shall be accomplished by
providing the Company with written notice in the form of Exhibit I hereto, which
notice shall be irrevocable when delivered and effective upon payment in full of
the Option Price in accordance with Section 5.04 of the Plan and any amounts
required in accordance with Section 5.11 of the Plan for withholding taxes, and
the satisfaction of all other conditions to exercise imposed under the Plan.
7. Payment of Option Price. Upon any exercise of the Option, the exercise
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price for the number of shares for which the Option is then being exercised and
the amount of any federal, state and local withholding shall be paid in full to
the Company in cash or in such other form as the Long Term Incentive Plan
Committee deems acceptable at the time of exercise.
8. Nontransferability of Option. The Option shall not be transferable or
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assignable by the Optionee, other than in accordance with Section 5.9 of the
Plan or by will or the laws of descent and distribution (or as otherwise
permitted by the Long Term Incentive Plan Committee in its sole discretion), and
shall be exercisable during the Optionee's lifetime only by him or her or by his
or her legal representative(s) or guardian(s).
9. Administration. The Plan and this Agreement shall be administered and
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may be definitively interpreted by the Long Term Incentive Plan Committee, and
the Optionee agrees to accept and abide by the decisions of such Long Term
Incentive Plan Committee concerning administration and interpretation of the
Plan and this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
Company by its duly authorized officer, and by the Optionee in acceptance of the
above-mentioned Option, subject to the terms and conditions of the Plan and of
this Agreement, all as of the day and year first above written.
ASD SYSTEMS, INC.
/s/
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By: ▇▇▇▇ ▇▇▇▇▇▇▇, President
OPTIONEE
/s/
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2
NOTICE OF EXERCISE
under
NONQUALIFIED STOCK OPTION AGREEMENT
-----------------------------------
pursuant to the
ASD SYSTEMS, INC. 1999 LONG TERM INCENTIVE PLAN
To: ASD Systems, Inc. (the "Company")
From: _____________________
Date: _____________________
Pursuant to the ASD Systems, Inc. 1999 Long Term Incentive Plan (the
"Plan") and the Nonqualified Stock Option Agreement (the "Agreement") between
the Company and myself effective ______________________, I hereby exercise my
Option as follows:
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Number of shares of Common Stock I wish to purchase under the Option
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Exercise Price per share $
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Total Exercise Price $
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"Vested Portion" of Option (see definition in Section 5 of the Agreement)
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Number of shares I have previously purchased by exercising the Option
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Expiration Date of the Option
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I hereby represent, warrant, and covenant to the Company that:
a. I am acquiring the Common Stock for my own account, for investment,
and not for distribution or resale, and I will make no transfer of such Common
Stock except in compliance with applicable federal and state securities laws and
in accordance with the provisions of the Plan.
b. I can bear the economic risk of the investment in the Common Stock
resulting from this exercise of the Option, including a total loss of my
investment.
c. I am experienced in business and financial matters and am capable of
(i) evaluating the merits and risks of an investment in the Common Stock; (ii)
making an informed investment decision regarding exercise of the Option; and
(iii) protecting my interests in connection therewith.
I acknowledge that I must pay the exercise price in full and make
appropriate arrangements for the payment of all federal, state and local tax
withholdings due with respect to the Option exercised herein, before the stock
certificate evidencing the shares of Common Stock resulting from this exercise
of the Option will be issued to me.
Attached in full payment of the exercise price for the Option exercised
herein is ( ) a check made payable to the Company in the amount of
$___________________.
___________________________________
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
pursuant to the
ASD SYSTEMS, INC. 1999 LONG TERM INCENTIVE PLAN
This INCENTIVE STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into by and between ASD SYSTEMS, INC., a Texas Corporation (the
"Company"), and ______________ (the "Optionee"), effective as of , 199
(the "Date of Grant").
1. Grant of Option. The Company hereby grants to the Optionee and
---------------
the Optionee hereby accepts, subject to the terms and conditions hereof, an
incentive stock option (the "Option") to purchase up to shares of
Company's Series B Common Stock (the "Common Stock") at the Exercise Price per
share set forth in Section 4 below. The Optionee acknowledges that the Common
Stock is nonvoting.
2. Governing Plan. This Option is granted pursuant to the Company's
--------------
1999 Long Term Incentive Plan (the "Plan"), a copy of which is attached hereto.
Capitalized terms used but not otherwise defined herein have the meanings as set
forth in the Plan. The Optionee agrees to be bound by the terms and conditions
of the Plan, which are incorporated herein by reference and which control in
case of any conflict with this Agreement.
3. Expiration of the Option. The Option (to the extent not earlier
------------------------
exercised or terminated due to cessation of the Optionee's employment or
otherwise in accordance with the Plan) will expire at the end of business on
_______, 2000, ten (10) years from the Date of Grant of the option. The Option
may terminate sooner under certain circumstances, including, without limitation,
termination of the Optionee's employment or other relationship with the Company,
as set forth in Section 5.13 (Just Cause Dismissal, death, normal retirement,
Permanent Disability and termination other than for Just Cause Dismissal) of the
Plan. The Option may not be exercised after its expiration or termination.
4. Exercise Plan. The "Option Price" of the Option is per
-------------
share of Common Stock. The Exercise Price is subject to adjustment as set forth
in Section 6.2 of the Plan.
5. Vesting. On each Measurement Date set forth in Column 1 below, the
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Option shall vest and become exercisable for the corresponding number of shares
of Common Stock set forth in Column 2 below if the Optionee's employment has not
terminated. The "Vested Portion" of the Option as of any particular date shall
be the cumulative total of all shares for which the Option has become
exercisable as of that date.
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Column 1 Column 2
Shares Vesting on
Measurement Date Measurement Date
--------------------------------------------
Notwithstanding the foregoing, in the event the Optionee's employment
with the Company and/or its subsidiaries is terminated within one (1) year after
a "Change in Control" (as defined below) then, immediately prior to the
effective date of such termination, all Options which have not lapsed, shall
become fully vested and exercisable (if not already vested and exercisable) by
Optionee for a period of thirty (30) days thereafter. In addition, upon a Change
in Control, pursuant to Section 7.2 of the Plan, this Option shall be
automatically converted into the right to receive, and thereafter shall be
exercisable for, in accordance with the Plan and this Agreement, the securities,
cash and/or other consideration that a holder of the shares underlying the
Options would have been entitled to receive upon consummation of a Change in
Control had such shares been issued and outstanding immediately prior to the
effective date and time of the Change in Control (net of appropriate exercise
prices). The phrase "Change in Control" used but not otherwise defined herein
has the meaning set forth in Article VIII of the Plan.
6. Exercise of the Option. The Vested Portion (as herein defined)
----------------------
of the Option may be exercised, to the extent not previously exercised, in
whole or in part, at any time or from time to time prior to the expiration or
termination of the Option, except that no Option shall be exercisable except in
respect to whole shares, and not less than one hundred (100) shares may be
purchased at one time unless the number purchased is the total number at the
time available for purchase under the terms of the Option. Exercise shall be
accomplished by providing the Company with written notice in the form of Exhibit
I hereto, which notice shall be irrevocable when delivered and effective upon
payment in full of the Option Price in accordance with Section 5.04 of the Plan
and any amounts required in accordance with Section 5.11 of the Plan for
withholding taxes, and the satisfaction of all other conditions to exercise
imposed under the Plan.
7. Payment of Option Price. Upon any exercise of the Option, the exercise
-----------------------
price for the number of shares for which the Option is then being exercised and
the amount of any federal, state and local withholding shall be paid in full to
the Company in cash or in such other form as the Long Term Incentive Plan
Committee deems acceptable at the time of exercise.
8. Nontransferability of Option. The Option shall not be transferable or
----------------------------
assignable by the Optionee, other than in accordance with Section 5.9 of the
Plan or by will or the laws of descent and distribution (or as otherwise
permitted by the Long Term Incentive Plan Committee in its sole discretion), and
shall be exercisable during the Optionee's lifetime only by him or her or by his
or her legal representative(s) or guardian(s).
9. Administration. The Plan and this Agreement shall be administered
--------------
and may be definitively interpreted by the Long Term Incentive Plan Committee,
and the Optionee agrees to accept and abide by the decisions of such Long Term
Incentive Plan Committee concerning administration and interpretation of the
Plan and this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
Company by its duly authorized officer, and by the Optionee in acceptance of the
above-mentioned Option, subject to the terms and conditions of the Plan and of
this Agreement, all as of the day and year first above written.
ASD SYSTEMS, INC.
----------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇, President
OPTIONEE
----------------------------
NOTICE OF EXERCISE
under
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
pursuant to the
ASD SYSTEMS, INC. 1999 LONG TERM INCENTIVE PLAN
To: ASD Systems, Inc. (the "Company")
From:_________________________________
Date:_________________________________
Pursuant to the ASD Systems, Inc. 1999 Long Term Incentive Plan (the
"Plan") and the Incentive Stock Option Agreement (the "Agreement") between the
Company and myself effective ______________________, I hereby exercise my Option
as follows:
Number of shares of Common Stock I wish to purchase under the Option
Exercise Price per share $
Total Exercise Price $
"Vested Portion" of Option (see definition in Section 5 of the Agreement)
Number of shares I have previously purchased by exercising the Option
Expiration Date of the Option
I hereby represent, warrant, and covenant to the Company that:
a. I am acquiring the Common Stock for my own account, for investment, and
not for distribution or resale, and I will make no transfer of such Common Stock
except in compliance with applicable federal and state securities laws and in
accordance with the provisions of the Plan.
b. I can bear the economic risk of the investment in the Common Stock
resulting from this exercise of the Option, including a total loss of my
investment.
c. I am experienced in business and financial matters and am capable of
(i) evaluating the merits and risks of an investment in the Common Stock; (ii)
making an informed investment decision regarding exercise of the Option; and
(iii) protecting my interests in connection therewith.
I acknowledge that I must pay the exercise price in full and make
appropriate arrangements for the payment of all federal, state and local tax
withholdings due with respect to the Option exercised herein, before the stock
certificate evidencing the shares of Common Stock resulting from this exercise
of the Option will be issued to me.
Attached in full payment of the exercise price for the Option exercised
herein is ( ) a check made payable to the Company in the amount of
$___________________.