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EXHIBIT 10.12
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") dated as of the 1st day
of January, 1997, is made and entered into by and between ML DIRECT INC., a
Delaware corporation with its principal offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (the "Company"), and THE COLUMBUS CIRCLE,
a New York partnership whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has agreed to grant options to the Optionee
pursuant to the terms and conditions of this Agreement and a Consulting
Agreement (the "Consulting Agreement") of even date herewith between KN2B, Inc.
(a majority-owned subsidiary of the Company)("KN2B") and the Optionee; and
WHEREAS, the Optionee desires to accept the granting of such options,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. The Company hereby grants
to the Optionee an option to purchase 27,273 shares of the Company's common
stock, par value $.0001 per share ("Common Stock").
Section 2. Granting of Additional Options.
(a) Provided that this Agreement shall have been in
effect at any time during the 120-day period ending on the second anniversary
of the date hereof, the Company shall grant to the Optionee options to purchase
27,273 shares of Common Stock on such
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second anniversary, and provided that this Agreement shall have been in effect
at any time during the 120-day period ending on the third anniversary of the
date hereof, the Company shall grant to the Optionee options to purchase 27,273
shares of Common Stock on such third anniversary.
(b) In the event KN2B closes a Transaction (as defined
below) prior to the termination of this Agreement, or within the 120-day period
following the termination of this Agreement, the Company shall grant to the
Optionee options to purchase the number of shares of Common Stock as shall be
equal to the amount obtained by dividing the Transaction Value (as defined
below) by 4.5, which options shall be granted on the date of the closing of the
Transaction (or, in the case of "contingent consideration" as referred to
below, when such consideration is actually paid). For purposes of this
Agreement, "Transaction" shall mean any infusion or infusions of capital
(either equity or debt), or any acquisition in whole or in part by KN2B or any
subsidiary thereof of a corporation, partnership or other business
organization, regardless of the structure of the transaction (including but not
limited to a merger with another company, a purchase of another company's
stock, a purchase of all or of substantially all of another company's assets,
etc.); provided that "Transaction" shall not include any infusion of capital or
any acquisition if such transaction is effected without the involvement of the
Optionee. "Transaction Value" shall mean (i) in the case of an infusion of
capital, the amount of capital received by KN2B, and (ii) in the case of an
acquisition, any and all consideration given by KN2B in the Transaction,
including but not limited to cash consideration, the fair market value of any
capital stock issued by the Company in the Transaction, any liabilities assumed
or guarantees
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given by the Company, any stated future consideration, any contingent
consideration (when earned), and any consideration given to individuals
affiliated or associated with the acquired company in connection with
non-competition, consulting or employment agreements (but only to the extent in
excess of customary compensation for services).
(c) Provided that this Agreement shall have been in
effect at any time within the 120-day period ending on the last day of its
1997, 1998, and 1999 fiscal years, respectively, then within ten days after the
delivery to KN2B of its audited financial statements for such fiscal year (but
in no event later than 90 days after the end of KN2B's fiscal year), the
Company shall grant to the Optionee options to purchase the number of shares of
Common Stock as shall be equal to the amount obtained by multiplying 27,273 by
a fraction, the numerator of which shall be the excess of KN2B's earnings per
share for such fiscal year over KN2B's earnings per share for its 1996 fiscal
year, and the denominator of which shall be the absolute value of KN2B's
earnings per share for its 1996 fiscal year.
Section 3. Exercise Price. The exercise price for the options
granted pursuant to Section 1 and Section 2 (the "Options") shall be $4.50 per
share (the "Exercise Price").
Section 4. Vesting and Exercise Period. Each Option shall
vest on the date of grant and may be exercised during the period commencing on
the date of grant and continuing through and including the fifth anniversary of
the date of grant.
Section 5. Termination of Options. To the extent not
exercised, Options shall terminate on the day immediately following the fifth
anniversary of the date of grant.
Section 6. Term. Subject to the provisions of Section 2,
the Company's
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obligation to grant additional Options hereunder shall terminate on the date of
the termination of the Consulting Agreement.
Section 7. Exercise of Options. The Options may be
exercised in whole or in part in accordance with the provisions of this
Agreement by the Optionee's tendering written notice of exercise together with
the Exercise Price (or a proportionate part thereof if any Option is partially
exercised), which shall be payable in immediately available funds or by way of
the delivery of a secured demand promissory note, and with such security, as
shall be in form and substance acceptable to the Company and the Optionee. The
Company will reasonably cooperate with the Optionee and its broker to
coordinate the payment of the Exercise Price and the delivery of the shares to
be issued upon the exercise of Options (the "Option Shares") in the event that
the Optionee sells the Option Shares concurrently with its exercise of an
Option.
Section 8. Corporate Events. In the event of a proposed
liquidation of the Company, a proposed sale of all or substantially all of its
assets or its Common Stock, a proposed merger or consolidation, or a proposed
separation or reorganization, the Board of Directors may by notice (the
"Termination Notice") to the Optionee declare that any Options shall terminate
as of a date (the "Termination Date") to be fixed by the Board of Directors,
which date shall be not less than 30 days after the Optionee's receipt of the
Termination Notice; provided however, that (a) if the Termination Date shall be
within either of the 120-day periods described in Section 2(a) hereof, the
granting of the Option that would have been granted at the end of said period
pursuant to Section 2(a) shall be accelerated to the date of the Termination
Notice, and (b) if the Termination Date shall be within any of the 120-day
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periods described in Section 2(c) hereof, the Company and the Optionee shall
jointly estimate in good faith the number of Option Shares that would have been
included in the Option that would have been granted with respect to the fiscal
year in which such 120-day period occurred, and the granting of such Option
shall accelerate to the date of the Termination Notice.
Section 9. No Stockholder Rights. Nothing set forth herein
shall give the Optionee any rights or privileges as a stockholder of the
Company prior to Optionee's exercise of any of the Options.
Section 10. Share Certificates. Upon receipt of payment
in full of the Exercise Price as provided herein, and after taking such
steps as it deems necessary to satisfy any withholding tax obligations imposed
upon it by any level of government, the Company will cause one or more stock
certificates evidencing the Optionee's ownership of the Option Shares so
purchased by the Optionee to be issued to the Optionee.
Section 11. Restrictions. Neither the Options nor the Option
Shares have been, nor is there any assurance that they will be, registered
under the Securities Act of 1933, as amended (the "Act"). All Option Shares
shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificates representing such Option Shares
shall bear an appropriate legend restricting their transfer. Such Option
Shares cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act and applicable state securities laws or unless a
valid exemption from registration is then available under applicable federal
and state securities laws and the Optionee has furnished the Company with an
opinion of counsel to that effect, which opinion shall be satisfactory in
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form and substance to the Company.
Section 12. Share Adjustments. If there is any change in
the number of shares of Common Stock on account of the payment of stock
dividends, recapitalization resulting in stock splits, combinations or
exchanges of shares of Common Stock, or other event in which the Company issues
Common Stock without consideration, the number of shares of Common Stock
available for purchase through the exercise of the Options, and the Exercise
Price, shall be proportionately adjusted by the Company.
Section 13. Miscellaneous Provisions.
(a) Notices. All notices to be given hereunder shall be in
writing and sent to the parties by personal delivery, certified mail, return
receipt requested, or by reputable overnight courier, and shall be addressed to
each party's respective address, as set forth in the first paragraph of this
Agreement, or to such other address as such party shall give to the other party
hereto by a notice given in accordance with this Section and, shall be
effective when actually received by the party being noticed.
(b) Assignment. This Agreement and the rights granted
hereunder may not be assigned in whole or in part by the Optionee without the
prior written consent of the Company.
(c) Further Assurances. Both parties hereto shall execute
and deliver such other instruments and do such other acts as may be necessary
to carry out the intent and purposes of this Agreement.
(d) Captions. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this
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Agreement or the intent of any of the provisions hereof.
(e) Completeness and Modification. This Agreement constitutes
the entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto
concerning the grant of Options to the Optionee. This Agreement shall not be
terminated, except in accordance with its terms, or amended, other than in a
writing executed by both of the parties hereto.
(f) Waiver. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition.
(g) Severability. The invalidity or enforceability, in whole
or in part, of any covenant, promise or undertaking, or any section,
subsection, paragraph, sentence, clause, phrase or word or of any provision of
this Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) Construction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
reference to its provisions regarding conflicts of laws.
(i) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties.
[Signatures appear on following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth in the first paragraph of this Agreement.
ML DIRECT INC.
BY:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
THE COLUMBUS CIRCLE
BY: Sherbrooke Consulting, Ltd.
BY:
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