STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of the 28th day of June,
2000, between Caribiner International, Inc. (to be renamed Audio Visual Services
Corporation), a Delaware corporation (hereinafter called the "Corporation"), and
___________________________, an employee of the Corporation or one of its
subsidiaries (hereinafter called the "Participant").
WHEREAS, the Corporation desires to give the Participant an
opportunity to participate in the long-term growth of the Corporation by
granting to the Participant options to purchase the Corporation's common stock,
par value $0.01 per share (the "Common Stock"), pursuant to the terms and
conditions of the Corporation's Amended and Restated 1996 Stock Option Plan (as
may otherwise be amended or restated from time to time, the "Plan"), and this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Grant of Option. The Corporation hereby grants to the Participant the
right and option (hereinafter called the "Option") to purchase an aggregate of
73,000 shares (the "Shares") of Common Stock (such number being subject to
adjustment as provided in paragraph 7 hereof) on the terms and subject to the
conditions herein set forth. Such Option shall vest and may be exercised at any
time on or after April 4, 2002 (the "Vesting Date") (unless terminated earlier
pursuant to paragraph 6 hereof). The Option granted hereby is not intended to be
an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Agreement shall be
construed and interpreted in accordance with such intention.
2. Exercise Price. The exercise price of the Shares covered by the Option
shall be Zero Dollars and Forty-six and Seven-eighths Cents ($0.46875) per
Share.
3. Term of Option. Subject to paragraph 8 hereof, the Option granted hereby
shall be exercisable in accordance with paragraph 1. The Participant's right to
exercise the aforementioned Option shall expire ten (10) years from the date
hereof (the "Expiration Date"). Unless terminated
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earlier pursuant to paragraph 6 hereof, the Option may not be exercised after
the Expiration Date.
4. Nontransferability. The Option granted hereby shall not be transferable
otherwise than by will or the laws of descent and distribution. More
particularly (except as provided in the preceding sentence), the Option may not
be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of
in any way, shall not be assignable by operation of law, and shall not be
subject to execution, attachment or similar process. Any attempted sale,
assignment, transfer, pledge, hypothecation or other disposition 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. The
Option may be exercised by the Participant only during his lifetime or following
his death pursuant to paragraph 6 hereof.
5. Disclosure and Risk.
(a) The Participant represents and warrants to the Corporation as follows:
(i) The Participant acknowledges that (A) neither the Option nor the
Shares have been registered for resale under the Securities Act
of 1933, as amended (the "Securities Act"), and (B) the
Corporation is under no obligation to effect the registration
under the Securities Act of the Option and/or the Shares.
(ii) The Shares will be acquired by the Participant for the
Participant's own account, for investment and not with a view to,
or for resale in connection with, any distribution or public
offering thereof within the meaning of the Securities Act.
(iii)The Corporation has made available to the Participant the
opportunity to ask questions of the officers and management of
the Corporation and to acquire information about the business and
financial condition of the Corporation and has, and at the time
of exercise of the Option will have, all information necessary
for him to make an informed investment decision.
(iv) He has received a copy of the Plan.
(b) Each certificate representing the Shares will be endorsed with the
following or a substantially similar legend:
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"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
COVERING SUCH SECURITIES, OR (ii) THE CORPORATION RECEIVES A
WRITTEN OPINION FROM COUNSEL FOR THE HOLDER OF THESE
SECURITIES, REASONABLY SATISFACTORY TO THE CORPORATION,
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION MAY BE MADE PURSUANT TO
RULE 144 PROMULGATED UNDER THE SECURITIES ACT OR IS OTHERWISE
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS."
The Corporation need not allow a transfer of any of the Shares unless one
of the conditions specified in the foregoing legend is satisfied. The
Corporation may also instruct its transfer agent not to allow the transfer of
any of the Shares unless one of the conditions specified in the foregoing legend
is satisfied.
Any legend endorsed on a certificate pursuant to the foregoing language and
the stop transfer instructions with respect to such Shares shall be removed, and
the Corporation shall promptly issue a certificate without such legend to the
holder thereof if (i) the Shares are registered under the Securities Act and a
prospectus meeting the requirements of Section 10 of the Securities Act is
available and has been delivered or (ii) the holder provides the Corporation
with a written opinion from counsel for such holder of the Shares, reasonably
satisfactory to the Corporation, to the effect that a sale, transfer,
assignment, pledge, hypothecation or other disposition of such Shares may be
made without registration.
6. Termination of Employment; Disability; Retirement; Death.
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(a) In the event that the Participant shall cease to be an
employee of the Corporation for any reason other than death, Disability,
Retirement, termination with or without Cause, or resignation for Good
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Reason (each as defined below), the Option may be exercised by the Participant
(to the extent that the Participant shall have been entitled to do so as of the
date of the termination of his employment with the Corporation) at any time
prior to the expiration date of the Option or within 30 days after such
termination (subject to an extension of such time as may be approved by the
Compensation Committee (the "Committee") of the Board of Directors (the "Board")
of the Corporation in its sole discretion), whichever is earlier. So long as the
Participant shall continue to be an employee of the Corporation, the Option
shall not be affected by any change of duties or position.
(b) In the event of the Disability or Retirement of the
Participant, the unexercised portion of the Option that is held by the
Participant on the date of such Disability or Retirement, whether or not
otherwise exercisable on such date, shall be exercisable one (1) year from the
date of Disability or Retirement. "Disability" shall mean any termination of
employment with the Corporation or a subsidiary because of a long-term or total
disability, as determined by the Committee in its sole discretion. "Retirement"
shall mean a termination of employment with the Corporation or a subsidiary
either (i) on a voluntary basis by a recipient who is at least 65 years of age
or (ii) otherwise with the written consent of the Committee in its sole
discretion.
(c) During the lifetime of the Participant, the Option shall
be exercisable only by him (or by his legal guardian or representative). In the
event of the death of the Participant while he is an employee of the Corporation
or any subsidiary, the Option (or unexercised portion thereof) that is held by
the Participant at the date of death, whether or not exercisable on the date of
death, shall be exercisable in accordance with the terms of this Agreement by
the beneficiary designated by the Participant for such purpose (the "Designated
Beneficiary") or if no Designated Beneficiary shall have been appointed or if
the Designated Beneficiary shall predecease the Participant, by the
Participant's personal representatives, heirs or legatees at any time for a
period of one (1) year after the date of the Participant's death and any portion
of the Option which is not exercised during such one (1) year period shall be
forfeited.
In the event of the death of the Participant following a
termination of employment due to Retirement or Disability, if such death occurs
before the Option (or any portion thereof) is exercised, the Option (or portion
thereof) that is held by the Participant on the date of termination of
employment, whether or not exercisable on such date,
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shall be exercisable by such Participant's Designated Beneficiary or if no
Designated Beneficiary shall have been appointed or if the Designated
Beneficiary shall predecease the Participant, by the Participant's personal
representatives, heirs or legatees at any time for a period of one (1) year
after the date of the Participant's death and any portion of the Option which is
not exercised during such one (1) year period shall be forfeited.
(d) In the event the Participant is terminated for Cause, the
Committee may, in its sole discretion, cause the unexercised portion of the
Option that is held by the Participant on the date of termination to be
forfeited. "Cause" shall mean: (i) Participant shall continually fail
substantially to perform his duties hereunder with reasonable diligence, other
than by reason of incapacity or shall violate any material term or condition of
his employment by the Corporation or a subsidiary, (ii) Participant shall engage
in an act of fraud, theft or embezzlement in connection with his employment by
the Corporation or a subsidiary, (iii) Participant shall engage in a material
act or omission involving wilful misconduct or gross negligence in the
performance of Participant's duties as an employee of the Corporation or a
subsidiary, (iv) Participant shall engage in a material act of dishonesty, (v)
Participant shall unreasonably refuse to carry out the lawful order of the Board
or his supervisor commensurate with Participant's duties to be performed as an
Employee of the Corporation or a subsidiary or (vi) Particpant shall be
convicted of a felony involving moral turpitude (which shall include any felony
relating to drugs) or shall plead nolo contendere (or make an equivalent plea)
in respect of, any governmental indictment, complaint or other formal
allegation. The Committee will have the sole discretion to determine whether the
Participant's termination was for Cause.
(e) In the event the Participant is terminated without
Cause (as defined above) or if Participant resigns for Good Reason (as defined
below) prior to the Vesting Date, Participant shall be permitted to retain the
Option and exercise all or any portion of the Option at any time on or after the
Vesting Date and for a period of six (6) months after the Vesting Date. In the
event the Participant is terminated without Cause or if Participant resigns for
Good Reason after the Vesting Date, Participant shall be permitted to exercise
(in whole or in part) any unexercised portion of the Option at any time after
such termination or resignation (as the case may be) prior to the Expiration
Date or for a period of six (6) months after such termination or resignation (as
the case may be), whichever is earlier. "Good Reason" shall mean: (i) a
relocation of Participant, without his prior written consent, more than fifty
(50) miles
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outside of the Corporation's offices in ___________________, or (ii) a failure
to maintain Participant as an __________________ of the Corporation or (iii) a
material diminution by the Corporation of the Participant's responsibilities,
which change would cause the Participant's position with the Corporation to
become one of significantly less responsibility or scope from that currently
occupied by the Participant.
7. Changes in Capital Structure. If all or any portion of the Option
shall be exercised subsequent to any stock dividend, stock split,
recapitalization, merger, consolidation, combination or exchange of shares,
separation, spin-off, reorganization, liquidation or the like occurring after
the date hereof, as a result of which shares of any class shall be issued in
respect of outstanding Common Stock or shares of Common Stock shall be changed
into the same or a different number of shares of the same or another class or
classes, the person or persons exercising the Option shall receive, for the
aggregate price paid upon such exercise, the aggregate number and class of
shares which, if the Shares (as authorized at the date hereof) had been
purchased at the date hereof for the same aggregate price (on the basis of the
price per share set forth in paragraph 2 hereof) and had not been disposed of,
such person or persons would be holding at the time of such exercise as a result
of such purchase and all such share dividends, stock splits, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, separations,
spin-offs, reorganizations, liquidations or the like; provided, however, that no
fractional shares shall be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of any fractional share not
issued. In no event shall any adjustments be made to the Option as a result of
the issuance or redemption of securities of the Corporation for cash or other
consideration, or upon the exercise of any conversion rights of any securities
of the Corporation.
8. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, the Option may be exercised in whole or in part by giving
written notice to the Secretary of the Corporation, at the address set forth
below the Corporation's signature to this Agreement or such other location as
may be designated by the Secretary of the Corporation. Such notice shall state
the Participant's election to exercise the Option and the number of Shares in
respect of which it is being exercised, and shall be signed by the person or
persons so exercising the
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Option. Payment for the Shares may be made (i) in cash or (ii) at the option of
the Committee, or, in absence of the Committee, the Board, by delivery of Common
Stock already owned by the Participant and having an aggregate Market Price (as
defined in the Plan) on the date of such delivery equal to the aggregate
exercise price of the shares so purchased or (iii) at the option of the
Committee, or, in absence of the Committee, the Board, by delivery of a
combination of cash and Common Stock having an aggregate Market Price on the
date of such delivery equal to the aggregate exercise price of the shares so
purchased. The Corporation shall deliver a certificate or certificates
representing the shares of Common Stock so purchased as soon as practicable
after the notice of election has been received. In the event the Option shall be
exercised by any person or persons other than the Participant, the notice of
election shall be accompanied by appropriate proof of the right of such person
or persons to exercise the Option. All shares of Common Stock that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid
and nonassessable.
9. Change of Control.
(a) As long as Participant is an employee of the Corporation,
a "Change of Control" of the Corporation shall cause the Option (or the
unexercised portion thereof), whether or not currently exercisable, to become
immediately exercisable, in whole or in part, as of the effective date of such
Change of Control without regard to any vesting provisions or condition
precedent which may be contained in paragraph 1 of this Agreement. For purposes
of this paragraph, a "Change of Control" shall be deemed to have occurred if (i)
any person or "group" (other than Warburg, Pincus Investors, L.P. or any
affiliate thereof) acquires, in a single transaction or series of related
transactions, 50% or more of the outstanding Common Stock; or (ii) the sale of
all or substantially all of the assets of the Corporation (other than to a
wholly-owned subsidiary of the Corporation).
(b) Notwithstanding the provisions of paragraph 9(a), in the
case that the Corporation is merged or consolidated with another corporation, or
the assets or stock of the Corporation is acquired by another corporation, or a
separation, reorganization or liquidation of the Corporation occurs, the Board,
or the Board of Directors of any corporation assuming the obligations of the
Corporation hereunder, shall make appropriate provisions for the protection of
the Option by substitution on an equitable basis of appropriate stock of the
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Corporation, or appropriate stock of the merged, consolidated or otherwise
reorganized corporation, provided that only the excess of the aggregate Market
Price of the shares subject to the Option immediately after such substitution
over the aggregate exercise price thereof is not less than the excess of the
aggregate Market Price of the shares subject to the Option immediately before
such substitution over the aggregate exercise price thereof.
10. Optionee Not a Stockholder. The Participant shall not have any
rights as a stockholder with respect to any shares of Common Stock subject to
the Option prior to the date on which he is recorded as the holder of such
shares on the records of the Corporation.
11. Taxes. The Corporation may make such provisions and take such steps
as it may deem necessary or appropriate for the withholding of all federal,
state, local and other taxes required by law to be withheld with respect to the
Option including, but not limited to (i) reducing the number of shares of Common
Stock otherwise deliverable, based upon their fair market value on the date of
exercise, to permit deduction of the amount of any such withholding taxes from
the amount otherwise payable under this Agreement; (ii) deducting the amount of
any such withholding taxes from any other amount then or thereafter payable to
the Participant; or (iii) requiring the Participant, Designated Beneficiary or
legal representative to pay to the Corporation the amount required or desirable
to enable it to satisfy its withholding obligations as a condition of releasing
the Common Stock.
12. General Provisions.
(a) The Corporation shall at all times during the term of the
Option reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Option Agreement, shall pay all fees and
expenses necessarily incurred by the Corporation in connection therewith, and
shall use its best efforts to comply with all laws and regulations which, in the
reasonable opinion of counsel to the Corporation, are applicable thereto.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
(c) Any notice to be given hereunder by either party to the
other shall be in writing and shall be given either by personal delivery,
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facsimile or by mail, registered or certified, postage prepaid, return receipt
requested, or by overnight delivery addressed to the other party at the
respective addresses or facsimile numbers set forth below their signatures to
this Agreement, or at any other address or facsimile number as such party may
hereafter specify in writing.
(d) This Agreement is irrevocable and is intended to conform
in all respects with the Plan. Inconsistencies between this Agreement and the
Plan shall be resolved according to the terms of the Plan. No amendments or
modifications to this Agreement shall be binding unless made in writing and
signed by the parties hereto.
(e) The waiver by either party of a breach of any term or
provision of this Agreement shall not operate or be construed as a waiver of a
subsequent breach of the same provision or of the breach of any other term or
provision of this Agreement.
(f) As used herein, the masculine gender shall include the
feminine and the neuter genders, the neuter shall include the masculine and the
feminine genders, the singular shall include the plural, and the plural shall
include the singular.
(g) The headings in this Agreement are solely for convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
(h) The invalidity or enforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(i) NEITHER THE PLAN NOR THIS AGREEMENT SHALL BE (1)
CONSTRUED AS GIVING THE PARTICIPANT THE RIGHT TO BE RETAINED IN THE EMPLOY
OF THE CORPORATION OR ANY SUBSIDIARY THEREOF OR TO BE ENTITLED TO ANY
REMUNERATION OR BENEFITS NOT SET FORTH IN THE PLAN OR THIS AGREEMENT
OR (2) INTERFERE WITH OR LIMIT THE RIGHT OF THE CORPORATION OR ANY
SUBSIDIARY THEREOF TO MODIFY THE TERMS OF OR TERMINATE THE PARTICIPANT'S
EMPLOYMENT AT ANY TIME WITH OR WITHOUT CAUSE.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
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PARTICIPANT
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Name:
Social Security No.:
Home Address:
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Home Telephone: -------------
Work Address:
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Work Telephone:--------------
Work Facsimile:--------------
CARIBINER INTERNATIONAL, INC.
By: --------------------------
Name: Robert K. Ellis
Title: Chairman of the Board
and Chief Executive
Officer
Address: 111 West Ocean Blvd.
Suite 1110
Long Beach, CA 90802
Telephone: (562) 366-0620
Facsimile: (562) 366-0628
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