EXHIBIT 4.3
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FORM TO BE USED FOR
NEW VISUAL CORPORATION
2001 STOCK INCENTIVE PLAN
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NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER
2001 STOCK INCENTIVE PLAN
OF
NEW VISUAL CORPORATION
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") entered
into this ___ day of _______________, _____, between NEW VISUAL CORPORATION, a
Utah corporation (the "Corporation"), and ________________, an Eligible Person
(as that term is defined by the Corporation's 2001 Stock Incentive Plan (the
"Plan")) (the "Optionee," which term as used herein shall be deemed to include
any successor to the Optionee by will or by the laws of descent and
distribution, unless the context shall otherwise require, as provided in the
Plan).
Pursuant to the Plan, the Administering Body approved the issuance to
the Optionee, effective as of the date set forth above, of a Non-qualified Stock
Option to purchase up to an aggregate of __________ shares of common stock of
the Corporation (the "Common Stock"), at the price of $____ per share (the
"Option Price"), upon the terms and conditions hereinafter set forth.
(Capitalized terms used herein but not defined herein shall have the meaning
ascribed to them in the Plan).
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as follows:
1. OPTION; OPTION PRICE. On behalf of the Corporation, the
Administering Body hereby grants as of the date of this Agreement to the
Optionee the option (the "Option") to purchase, subject to the terms and
conditions of this Agreement and the provisions of the Plan (which is
incorporated by reference herein and which in all cases shall control in the
event of any conflict with the terms, definitions and provisions of this
Agreement), _________ shares of Common Stock of the Corporation at an exercise
price per share equal to the Option Price. A copy of the Plan as in effect on
the date hereof has been supplied to the Optionee, and the Optionee by executing
this Agreement hereby acknowledges receipt thereof.
2. TERM. The term (the "Option Term") of the Option shall commence on
the date of this Agreement and shall terminate on the _______ (___) anniversary
of the date of this Agreement, [NOT TO EXCEED TEN (10) years] unless such Option
shall theretofore have been terminated in accordance with the terms hereof or
the provisions of the Plan.
3. VESTING; RESTRICTIONS ON EXERCISE.
(a) Subject to the provisions of Sections 5 and 8 hereof, and
unless accelerated, as set forth in the Plan or as provided herein, the Option
granted hereunder shall vest and become exercisable for the number of shares set
forth opposite the dates noted below.
Cumulative
Date(s) Number of Vested Shares
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(b) If the Corporation shall consummate any Reorganization not
involving a Change in Control in which holders of shares of Common Stock are
entitled to receive in respect of such shares any securities, cash or other
consideration (including, without limitation, a different number of shares of
Common Stock), the Option shall thereafter be exercisable, in accordance with
the Plan and this Agreement, only for the kind and amount of securities, cash
and/or other consideration receivable upon such Reorganization by a holder of
the same number of shares of Common Stock as are subject to the Option
immediately prior to such Reorganization, and any adjustments will be made to
the terms of the Option in the sole discretion of the Administering Body as it
may deem appropriate to give effect to the Reorganization. If the Corporation
shall consummate any Reorganization or other corporate transaction which
involves a Change of Control, the rights of Optionee as to any adjustments or
other matters resulting therefrom shall be as set forth in the Plan.
(c) Subject to the provisions of Sections 5 and 8, shares as
to which the Option becomes exercisable pursuant to the foregoing provisions may
be purchased at any time thereafter prior to the expiration or termination of
the Option.
4. TERMINATION OF OPTION. The unexercised portion of the Option shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of:
(a) six months after the Optionee's engagement with the
Corporation is terminated as a result of death or Permanent Disability;
(b) ninety days after the Optionee's engagement with the
Corporation is terminated for any reason other than death or Permanent
Disability; or
(c) the expiration date of the term of the Option.
5. PROCEDURE FOR EXERCISE.
(a) Subject to the requirements of Section 8, the Option may
be exercised, from time to time, in whole or in part (but for the purchase of a
whole number of shares only), by delivery of a written notice, a form of which
has been attached as Annex A hereto (the "Notice"), from the Optionee to the
Chief Financial Officer of the Corporation, which Notice shall:
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(i) state that the Optionee elects to exercise the
Option;
(ii) state the number of vested shares with respect
to which the Option is being exercised (the "Optioned Shares");
(iii) state the date upon which the Optionee desires
to consummate the purchase of the Optioned Shares (which date must be
prior to the termination of such Option and no later than 30 days after
the date of receipt of such Notice);
(iv) include any representations of the Optionee
required under Section 8(c); and
(v) if the Option shall be exercised pursuant to
Section 9 by any person other than the Optionee, include evidence to
the satisfaction of the Administering Body of the right of such person
to exercise the Option.
(b) Payment of the Option Price for the Optioned Shares shall
be made in U.S. dollars by personal check, bank draft or money order payable to
the order of the Corporation or by wire transfer.
(c) The Corporation shall issue a stock certificate in the
name of the Optionee (or such other person exercising the Option in accordance
with the provisions of Section 9) for the Optioned Shares as soon as practicable
after receipt of the Notice and payment of the aggregate Option Price for such
shares.
6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall have no rights as a
stockholder of the Corporation with respect to any Optioned Shares until the
date the Optionee or his nominee (which, for purposes of this Agreement, shall
include any third party agent selected by the Administering Body to hold such
Optioned Shares on behalf of the Optionee), guardian or legal representative is
the holder of record of such Optioned Shares.
7. ADJUSTMENTS.
(a) If at any time while the Option is outstanding, (1) there
shall be any increase or decrease in the number of issued and outstanding shares
of Common Stock through the declaration of a stock dividend, stock split,
combination of shares or through any recapitalization resulting in a stock
split-up, spin-off, combination or exchange of shares of Common Stock or (2) the
value of the outstanding shares of Common Stock is reduced by reason of an
extraordinary cash dividend, then, and in each such event, appropriate
adjustment shall be made in the number of shares and the exercise price per
share covered by the Option, so that the same proportion of the Corporation's
issued and outstanding shares of Common Stock shall remain subject to purchase
at the same aggregate exercise price.
(b) Except as otherwise expressly provided herein, the
issuance by the Corporation of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the
Corporation convertible into such shares or other securities, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the number of
or exercise price of shares of Common Stock covered by the Option.
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(c) Without limiting the generality of the foregoing, the
existence of the Option shall not affect in any manner the right or power of the
Corporation to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Corporation's capital
structure or its business; (ii) any merger or consolidation of the Corporation;
(iii) any issue by the Corporation of debt securities, or preferred or
preference stock that would rank above the shares of Common Stock covered by the
Option; (iv) the dissolution or liquidation of the Corporation; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Corporation; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
8. ADDITIONAL PROVISIONS RELATED TO EXERCISE.
(a) The Option shall be exercisable only in accordance with
this Agreement and the terms of the Plan, including the provisions regarding the
period when the Option may be exercised and the number of shares of Common Stock
that may be acquired upon exercise.
(b) The Option may not be exercised as to less than 100 shares
of Common Stock at any one time unless less than 100 shares of Common Stock
remain to be purchased upon the exercise of the Option.
(c) To exercise the Option, the Optionee shall follow the
provisions of Section 5. Upon the exercise of the Option at a time when there is
not in effect a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") relating to the shares of Common Stock issuable
upon exercise of the Option, the Administering Body in its discretion may, as a
condition to the exercise of the Option, require the Optionee (i) to represent
in writing that the shares of Common Stock received upon exercise of the Option
are being acquired for investment and not with a view to distribution and (ii)
to make such other representations and warranties as are deemed appropriate by
counsel to the Corporation. No Option may be exercised and no shares of Common
Stock shall be issued and delivered upon the exercise of the Option unless and
until the Corporation and/or the Optionee shall have complied with all
applicable federal or state registration, listing and/or qualification
requirements and all other requirements of law or of any regulatory agencies
having jurisdiction.
(d) Stock certificates representing shares of Common Stock
acquired upon the exercise of the Option that have not been registered under the
Securities Act shall, if required by the Administering Body, bear an appropriate
legend which may, at the discretion of the Administering Body, take the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED."
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(e) The exercise of each Option and the issuance of shares in
connection with the exercise of an Option shall, in all cases, be subject to
each of the following conditions: (i) compliance with the terms of the Plan and
this Agreement, (ii) the satisfaction of withholding tax or other withholding
liabilities, (iii) as necessary, the listing, registration or qualification of
any to-be-issued shares upon any securities exchange, The Nasdaq Stock Market or
other trading or quotation system or under any federal or state law and (iv) the
consent or approval of any regulatory body. The Administering Body shall in its
sole discretion determine whether one or more of these conditions is necessary
or desirable to be satisfied in connection with the exercise of an Option and
prior to the delivery or purchase of shares pursuant to the exercise of an
Option. The exercise of an Option shall not be effective unless and until such
condition(s) shall have been satisfied or the Administering Body shall have
waived such conditions, in its sole discretion.
9. RESTRICTION ON TRANSFER. The Option may not be assigned or
transferred except by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the IRC, and may
be exercised during the lifetime of the Optionee only by the Optionee or the
Optionee's guardian or legal representative or assignee pursuant to a qualified
domestic relations order. If the Optionee dies, the Option shall thereafter be
exercisable, during the period specified in Section 4(a), by his executors or
administrators or by a person who acquired the right to exercise such Option by
bequest or inheritance to the full extent to which the Option was exercisable by
the Optionee at the time of his death. If the Optionee becomes inflicted with a
Permanent Disability, the Option shall thereafter be exercisable, during the
period specified in Section 4(a), by his legal representatives to the full
extent to which the Option was exercisable by the Optionee at the time of his
Permanent Disability. The Option shall not be subject to execution, attachment
or similar process. Any attempted assignment or transfer of the Option contrary
to the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without effect.
10. NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally-recognized overnight courier or (iii) sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Optionee, to the address set forth on the signature
page hereto; and
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if to the Corporation, to:
New Visual Corporation
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Attention: President
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, (ii) on the first Business Day (as hereinafter defined)
after dispatch, if sent by nationally-recognized overnight courier and (iii) on
the third Business Day following the date on which the piece of mail containing
such communication is posted, if sent by mail. As used herein, "Business Day"
means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.
11. NO WAIVER. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
12. OPTIONEE UNDERTAKING. The Optionee hereby agrees to take whatever
additional actions and execute whatever additional documents the Corporation or
its counsel may in their reasonable judgment deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions
imposed on the Optionee pursuant to the express provisions of this Agreement or
the Plan.
13. MODIFICATION OF RIGHTS. The rights of the Optionee are subject to
modification and termination in certain events as provided in this Agreement and
the Plan.
14. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Utah applicable to contracts made
and to be wholly performed therein.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
16. ENTIRE AGREEMENT. This Agreement and the Plan constitute the entire
agreement between the parties with respect to the subject matter hereof, and
supersede all previously written or oral negotiations, commitments,
representations and agreements with respect thereto.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NEW VISUAL CORPORATION
By:
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Name:
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Title:
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OPTIONEE:
Name:
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Address:
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ANNEX A
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EXERCISE NOTICE
Ladies/Gentlemen:
I hereby exercise my Stock Option to purchase _________ shares of Common Stock
of NEW VISUAL CORPORATION at the option price of $____ per share as provided in
the Non-qualified Stock Option Agreement dated the ___ day of ________________.
I acknowledge that I previously received a copy of the 2001 Stock Incentive Plan
of New Visual Corporation and executed a Stock Option Agreement, and I have
carefully reviewed both documents.
I have considered the tax implications of my option and the exercise thereof. I
hereby tender my personal check, bank draft or money order payable to NEW VISUAL
CORPORATION in the amount of $____________ or, I have wire transferred
$_______________ to NEW VISUAL CORPORATION, which transfer shall be subject to
the confirmation of receipt of funds by the Corporation. IF PAYMENT IS TO BE
MADE BY WIRE TRANSFER, THE OPTIONEE SHOULD CONTACT THE CORPORATION'S CHIEF
FINANCIAL OFFICER OR CONTROLLER IN ADVANCE TO OBTAIN WIRING INSTRUCTIONS.
_______________________________
Optionee
_______________________________
Date
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