EXHIBIT 4.2
NON-QUALIFIED STOCK OPTION AGREEMENT
This NON-QUALIFIED STOCK OPTION AGREEMENT dated as of , 1998,
between SPIGADORO, INC., a Delaware corporation (the "Company"), and
(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).
In consideration for [providing the Company with certain advisory
services, serving as a member of the Board of Directors of the Company] the
Company has agreed to issue the Optionee with a non-incentive option to
purchase [ ] shares of Common Stock, $0.01 par value, of the Company (the
"Common Stock"), at the price of $[ ] per share (the "Option Price"), upon the
terms and conditions hereinafter set forth, which option is not intended to
qualify for Federal income tax purposes as an "incentive stock option" within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, in consideration of the mutual premises and undertakings
hereinafter set forth, the parties hereto agree as follows:
SECTION 1. OPTION; OPTION PRICE. The Company hereby grants to the
Optionee the option (the "Option") to purchase, subject to the terms and
conditions of this Agreement, [ ] shares of Common Stock at an exercise price
per share equal to the Option Price.
SECTION 2. TERMS AND CONDITIONS OF OPTION.
(a) Expiration Date. The term (the "Option Term") of the Option shall
commence on the date of this Agreement and shall expire on [ ].
(b) Vesting of Options. The Option shall become exercisable as to the
total number of shares of Common Stock subject to the Option as set forth in
EXHIBIT A hereto.
SECTION 3. PROCEDURE FOR EXERCISE.
(a) Notice. The Optionee may exercise the Option (for the shares of
Common Stock represented thereby) in whole or in part (but for the purchase of
whole shares of Common Stock only), by delivering a written notice (the
"Notice") to the Secretary of the Company. The Notice shall state that the
Optionee elects to exercise the Option; the number of shares of Common Stock
with respect to which the Option is being exercised (the "Optioned Shares");
the method of payment for the Optioned Shares, as hereinafter described, and
delivery of the stock certificate or certified check with respect to such
chosen method of payment; the date upon
which the Optionee desires to consummate the purchase. The following forms of
payment may be used by the Optionee upon exercise of the Option: certified
check payable to the Company in an amount equal to the aggregate Option Price
with respect to the Optioned Shares; or stock certificates (in negotiable form)
representing shares of Common Stock having a market value, as reasonably
determined by the Board of Directors of the Company, equal to the aggregate
Option Price for the Optioned Shares.
(b) Issuance of Certificates. The Company shall issue stock certificates
in the name of the Optionee for the Optioned Shares as soon as practicable
after receipt of the Notice and payment of the aggregate Option Price for such
Optioned Shares.
SECTION 4. ADJUSTMENTS.
(a) Changes in Capital Structure. If the Common Stock is changed by
reason of a stock split, reverse stock split or stock combination, stock
dividend or distribution, or recapitalization, or converted into or exchanged
for other securities as a result of a merger, consolidation or reorganization,
the Board shall make such adjustments in the number and class of shares of
Common Stock subject to the Option as shall be necessary to preserve to the
Optionee's rights substantially proportionate to his rights existing
immediately prior to such transaction or event (but subject to the limitations
and restrictions on such rights), including, without limitation, a
corresponding adjustment changing the number and class of shares allocated to,
and the Option Price of, the Option or portion thereof outstanding at the time
of such change.
(b) Special Rules. The following rules shall apply in connection with
Section 4(a) above: no adjustment shall be made for cash dividends or the
issuance to stockholders of rights to subscribe for additional shares of Common
Stock, or other securities; and any adjustments referred to in Section 4(a)
shall be made by the Board in its sole discretion and shall, absent manifest
error, be conclusive and binding on the Optionee.
SECTION 5. RESTRICTIONS ON OPTION AND OPTIONED SHARES 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, relating to the shares of Common
Stock issuable upon exercise of the Option, the Board in its discretion may, as
a condition to any exercise of the Option, require the Optionee to represent in
writing that the securities received upon exercise of the Option are being
acquired for investment and not with a view to distribution and to make such
other representations and warranties as are deemed appropriate by the Company.
Stock certificates representing securities acquired upon the exercise of the
Option that have not been registered under the Securities Act of 1933, as
amended, shall, if required by the Board, bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
-2-
"SECURITIES ACT"). THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL TO THE ISSUER
HEREOF THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT."
No shares of Common Stock shall be issued and delivered upon the
exercise of the Option unless and until the Company 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.
SECTION 6. NON-TRANSFERABILITY. The Option shall not be transferable
other than by will or by the laws of descent and distribution. During the
lifetime of Optionee, the Option shall be exercisable only by Optionee.
Optionee shall not pledge, hypothecate or otherwise encumber or permit any
liens to attach to the Option.
SECTION 7. TAX WITHHOLDING. In the event the Company determines that it
is required to withhold amounts for payment of federal, state and local income
taxes, or any other taxes in connection with the exercise of the Option or the
disposition of shares of Common Stock issued pursuant to the exercise of the
Option, Optionee or any person succeeding to the rights of Optionee, as a
condition to such exercise or disposition, shall make arrangements satisfactory
to the Company to enable it to satisfy such withholding requirements.
SECTION 8. TERMINATION. Nothing contained in this Option Agreement shall
confer upon the Optionee any right to remain a [DIRECTOR, ADVISOR, AS
APPLICABLE] of the Company. If the Optionee's position with the Company is
terminated for any reason, or by reason of death or disability, the vested
portion of the Option may be exercised by Optionee, or his heirs, devises, or
legatees no later than [THREE] months from the date of termination and the
unvested portion shall be forfeited, but in no event shall any portion of the
Option remain exercisable after the expiration date of the Option as specified
in paragraph (a) of Section 2.
SECTION 9. TREATMENT OF OPTION AS NON-QUALIFIED STOCK OPTION. The
Company and Optionee acknowledge that the Option granted hereunder is not
qualified for Federal income tax purposes as an "incentive stock option" within
the meaning of Section 422 of the Code.
SECTION 10. GOVERNING LAW. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and
construed and enforced in accordance with the domestic laws of the State of New
York, without giving effect to any choice or conflict of law provision or rule
(whether in the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York.
-3-
In furtherance of the foregoing, the internal law of the State of New York will
control the interpretation and construction of this Agreement, even if under
such jurisdiction's choice of law or conflict of law analysis, the substantive
law of some other jurisdiction would ordinarily apply.
SECTION 11. NOTICES. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given and delivered if personally delivered or if sent
by nationally-recognized overnight courier, by telecopy, or by registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to the Company, to it:
Spigadoro, Inc.
70 East 55th Street
24th Floor
New York, New York 10022
Telephone: (212)754-4271
Telecopier: (212)754-4044
Attention: Klaus Grissemann
with a copy to:
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
Attention: Steven Skolnick, Esq.
Telecopier: (973) 597-2500
Telephone: (973) 597-2400
and
if to the Optionee, to it at:
[ ]
Telecopier: ( )
Telephone: ( )
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery (or if such date is not a
business day, on the next business after the date of delivery), (ii) in the
case of nationally-recognized overnight courier, on the next business day after
the date sent, (iii) in the case of telecopy transmission, when received (or if
not sent on a business day, on the next
-4-
business day after the date sent), and (iv) in the case of mailing, on the
third business day following that on which the piece of mail containing such
communication is posted.
SECTION 12. OPTIONEE UNDERTAKING. The Optionee hereby agrees to take
whatever additional actions and execute whatever additional documents the
Company may in its 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.
SECTION 13. MODIFICATION OF RIGHTS. The rights of the Optionee are
subject to modification and termination in certain events as provided in this
Agreement.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be wholly performed therein.
SECTION 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.
SECTION 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.
-5-
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the date first written above.
SPIGADORO, INC.
By:
------------------------------
[ ]
---------------------------------
-6-
EXHIBIT A
_________ Options shall vest (if at all) as follows:
Number of
Time Options Vested
- ---- --------------
-7-