EXHIBIT 10.8
OPTION AGREEMENT - ▇▇▇▇▇▇
NEW VISUAL CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
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PURSUANT TO THE
NEW VISUAL CORPORATION 2000 OMNIBUS SECURITIES PLAN
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "AGREEMENT") is made
and entered into by and between NEW VISUAL CORPORATION, a Utah corporation (the
"COMPANY"), and C. ▇▇▇▇ ▇▇▇▇▇▇ III (the "OPTIONEE"), effective as of February
25, 2002 (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, a
Non-Qualified Stock Option (the "OPTION") to purchase up to 600,000 shares of
Company's Common Stock, par value $0.001 per share (the "COMMON STOCK"), at the
Exercise Price per share set forth in SECTION 4 below.
2. GOVERNING PLAN. This Option is granted pursuant to the Company's
2000 Omnibus Securities Plan (the "PLAN"), a copy of which is attached hereto as
ATTACHMENT ONE and incorporated herein for all purposes. 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
control in case of any conflict with this Agreement, except as otherwise
specifically provided for in the Plan.
3. EXPIRATION OF THE OPTION. The Option (to the extent not earlier
exercised or terminated in accordance with the Plan) will expire at the end of
business on February 25, 2012, which date is not in excess of ten (10) years
from the Date of Grant of the Option. The Option may terminate sooner under
certain circumstances, including termination of the Optionee's employment or
other business relationship with the Company and/or any Affiliated Entity, as
set forth in SECTIONS 5.13 and 5.14 of the Plan or upon certain Changes in
Control, as provided in SECTION 8.2 of the Plan. The Option may not be exercised
after its expiration or termination.
4. EXERCISE PRICE. The "EXERCISE PRICE" of the Option is forty-two
cents ($0.42) per share of Common Stock. The Exercise Price is subject to
adjustment or amendment as set forth in the Plan, including SECTION 3.4, SECTION
4.5(b) or SECTION 6.2 of the Plan.
5. VESTING. (a) On each Measurement Date set forth in Column 1 below,
the 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
or engagement with the Company and/or any Affiliated Entity 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
Measurement Date Vested Portion of the Option
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April 30, 2002 150,000
July 31, 2002 150,000
October 31, 2002 150,000
January 31, 2003 150,000
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NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - PAGE 1
(b) Notwithstanding anything to the contrary contained herein or in the
Plan, in the event the Optionee's employment or engagement with the Company
and/or an Affiliated Entity is terminated by the Company and/or an Affiliated
Entity within one (1) year following a Change in Control for reasons other than
Just Cause Dismissal, or if the Optionee terminates his employment or engagement
with the Company and/or an Affiliated Entity within one (1) year following a
Change in Control for Good Reason, then, immediately prior to the effective date
of such termination, all Options which have not lapsed prior to the date of such
termination shall become fully vested and exercisable (if not already vested and
exercisable) by Optionee for a period of three (3) months after such
termination, or in the event termination results from death or Permanent
Disability, for the period set forth in SECTION 5.13(A) OR 5.14(A) of the Plan,
as applicable, but, in any event, not after expiration of the Option pursuant to
SECTION 3 of this Agreement. The phrase "CHANGE IN CONTROL" used but not
otherwise defined herein has the meaning set forth in Article 9 of the Plan. The
phrase "GOOD REASON" shall mean the occurrence of, without Optionee's express
written consent, any material demotion of an Employee Optionee from the position
and the responsibilities which existed prior to the Change in Control, or
Optionee's death or Permanent Disability.
(c) In addition, upon a Change in Control pursuant to SECTION 8.2 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 a consummation of the 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).
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 A hereto, which
notice shall be irrevocable when delivered and effective upon payment in full of
the Option Price in accordance with SECTION 5.4 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 total
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 taxes shall
be paid in full to the Company in cash or with shares of Common Stock that have
been owned for at least six months by the Optionee (or by the Optionee and his
or her spouse jointly), or a combination thereof, or in such other form
permitted by applicable law and the Plan as the Administering Body deems
acceptable at the time of exercise.
8. RESERVED.
9. 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 Administering Body 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) or any permitted transferee.
NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - PAGE 2
10. ADMINISTRATION. The Plan and this Agreement shall be administered
and may be definitively interpreted by the Administering Body, and the Optionee
agrees that the decisions of such Administering Body concerning administration
and interpretation of the Plan and this Agreement shall be final, binding and
conclusive on all persons.
11. 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: (a) if to Optionee, at the address set forth on the
signature page hereto; or (b) if to the Company, at the address set forth in the
signature page hereto, or in either case, 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.
12. 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.
[SIGNATURES ON FOLLOWING PAGE]
NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - PAGE 3
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.
COMPANY:
NEW VISUAL CORPORATION,
a Utah corporation
BY: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: CEO
OPTIONEE:
/s/ C. ▇▇▇▇ ▇▇▇▇▇▇ III
Printed Name: C. ▇▇▇▇ ▇▇▇▇▇▇ III
Address: ___________________________________
___________________________________
___________________________________
NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - PAGE 4
EXHIBIT A
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NOTICE OF EXERCISE
UNDER
NON-QUALIFIED STOCK OPTION AGREEMENT
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ISSUED PURSUANT TO THE
NEW VISUAL CORPORATION 2000 OMNIBUS SECURITIES PLAN
To: New Visual Corporation (the "COMPANY")
From:
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Date:
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Pursuant to the New Visual Corporation 2000 Omnibus Securities Plan
(the "PLAN") and the Non-Qualified Stock Option Agreement (the "AGREEMENT")
(capitalized terms used without definition herein have the meanings given such
terms in the Agreement or the Plan) between the Company and myself effective
February 25, 2002, 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 $0.42
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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 February 25, 2012
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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.
d. Any subsequent offer for sale or distribution of any of the shares
of Common Stock shall be made only pursuant to (i) a registration statement on
an appropriate form under the Securities Act, which registration statement has
become effective and is current with regard to the shares being offered or sold,
or (ii) a specific exemption from the registration requirements of the
Securities Act, it being understood that to the extent any such exemption is
claimed, I shall, prior to any offer for sale or sale of such shares, obtain a
prior favorable written opinion, in form and substance satisfactory to the
Administering Body, from counsel for or approved by the Administering Body, as
to the applicability of such exemption thereto.
NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - EXHIBIT A
I acknowledge that I must pay the total 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
$___________________ and/or ( ) a stock certificate for _______ shares of Common
Stock that have been owned by me or by me and my spouse jointly for at least six
months, with a duly completed stock power attached, with a total Fair Market
Value on the date hereof to the Total Exercise Price.
Also attached in full payment of all withholding tax obligations
arising from exercise of the Option is (___) a check made payable tot he Company
in the amount of such required withholding and/or (____) a stock certificate for
____ shares of Common Stock that have been owned by me or by me and my spouse
jointly for at least six months, with a duly completed stock power attached,
with a total Fair Market Value on the date hereof to the amount of such required
withholding.
Printed Name:
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Address:
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RECEIVED BY THE COMPANY:
NEW VISUAL CORPORATION
By:
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Name:
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Title:
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Date:
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NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - PAGE 2
ATTACHMENT ONE
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TO
NEW VISUAL CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
ISSUED PURSUANT TO THE
2000 OMNIBUS SECURITIES PLAN
COPY OF
NEW VISUAL CORPORATION
2000 OMNIBUS SECURITIES PLAN
(SEE ATTACHED)
NEW VISUAL CORPORATION, NON-QUALIFIED STOCK OPTION AGREEMENT - ATTACHMENT ONE
