ICONIX
BRAND GROUP, INC.
2006
EQUITY INCENTIVE PLAN
(as
last
amended on July 31, 2008)
1.
PURPOSE
The
Plan
has been established to advance the interests of the Company and its
stockholders by providing for the grant to Participants of Stock-based and
other
incentive Awards to (i) enhance the Company’s ability to attract and retain
current or prospective Employees, directors and consultants who are in a
position to make contributions to the success of the Company and its Affiliates
and (ii) encourage Participants to take into account the long-term interests
of
the Company and its stockholders through ownership of shares of
Stock.
2.
DEFINED
TERMS
Exhibit
A, which is incorporated by reference, defines the terms used in the Plan and
sets forth certain operational rules related to those terms.
3.
ADMINISTRATION
The
Administrator shall have the right to construe the Plan and the Awards issued
pursuant to it, to correct defects and omissions and to reconcile
inconsistencies to the extent that the Administrator deems it to be necessary
or
desirable to effectuate the purposes of the Plan and the Awards issued pursuant
to it, and such action shall be final, binding and conclusive upon all parties
concerned. The Administrator has discretionary authority, subject only to the
express provisions of the Plan, to determine eligibility for and grant Awards;
determine, modify or waive the terms and conditions of any Award; prescribe
forms, rules and procedures; and otherwise do all things necessary to carry
out
the purposes of the Plan. In the case of any Award intended to be eligible
for
the performance-based compensation exception under Section 162(m), the
Administrator will exercise its discretion consistent with qualifying the Award
for that exception. No Administrator shall be liable for any act or omission
(whether or not negligent) taken or omitted in good faith, or for the exercise
of an authority or discretion granted in connection with the Plan, or for the
acts or omission of other members of the Committee or other individuals or
entities comprising the Administrator.
4.
LIMITS
ON AWARDS UNDER THE PLAN
(a)
Number
of Shares.
The
maximum number of shares of Stock that may be issued under the Plan and under
ISOs issued pursuant to the Plan shall not exceed, in the aggregate, 2,000,000
shares of Stock and 500,000 shares of Stock, respectively. If any Award expires
or is terminated, surrendered, forfeited or canceled without having been fully
exercised or results in any Common Stock not being issued, the shares of Common
Stock covered by such Award shall again be available for the grant of Awards
under the Plan. With respect to the issuance of SARs that may be settled in
Stock, the number of shares available for Awards under the Plan will be reduced
by the total number of SARs granted. SARs that may be settled in cash only
will
not reduce the number of shares available for award under the Plan. The limit
set forth in this Section 4(a) shall be construed to comply with Section 422
of
the Code and regulations thereunder. To the extent consistent with the
requirements of Section 422 of the Code and regulations thereunder, and with
other applicable legal requirements (including applicable stock exchange
requirements), Stock issued under awards of an acquired company that are
converted, replaced, or adjusted in connection with the acquisition will not
reduce the number of shares available for Awards under the Plan.
(b)
Type
of Shares.
Stock
delivered by the Company under the Plan may be authorized but unissued Stock
or
previously issued Stock acquired by the Company. Except as determined by the
Administrator, no fractional shares of Stock will be delivered under the
Plan.
(c)
Section
162(m) Limits.
The
maximum number of shares of Stock for which Stock Options may be granted to
any
person in any fiscal year and the maximum number of shares of Stock subject
to
SARs granted to any person in any fiscal year will each be 100% of the aggregate
number of Shares that may be issued under the Plan. The maximum number of shares
subject to any “performance-based compensation” Awards (as defined for purposes
of Section 162(m) and the applicable Treasury Regulations thereunder) granted
to
any person in any fiscal year shall be 1,500,000 shares of Stock.
The
foregoing provisions will be construed in a manner consistent with Section
162(m).
(d)
Stock
Dividends, Stock Splits, etc.
In the
event of any change in the outstanding shares of the Common Stock of the Company
by reason of a stock dividend, stock split, combination of shares,
recapitalization, merger, consolidation, transfer of assets, reorganization,
conversion or what the Administrator deems in its sole discretion to be similar
circumstances, the aggregate number and kind of shares which may be issued
under
this Plan (including, but not limited to, the provisions of Section 4(a) and
Section 4(c) hereof) shall be appropriately adjusted in a manner determined
in
the sole discretion of the Administrator.
(e)
Par
Value.
Notwithstanding anything herein to the contrary, if a Participant is required
by
applicable law to pay the par value of the Common Stock subject to an Award,
such payment may be made in any form permitted by applicable law, including
services performed or contracted to be performed, in the sole discretion of
the
Administrator.
5.
ELIGIBILITY
AND PARTICIPATION
The
Administrator will select Participants from among those current and prospective
Employees, directors and consultants to the Company or its Affiliates and others
who, in the opinion of the Administrator, are in a position to make a
significant contribution to the success of the Company and its Affiliates.
Eligibility for ISOs is limited to Employees of the Company or of a “Parent
Corporation” or “Subsidiary Corporation” of the Company on the date of grant of
the ISO.
6.
RULES APPLICABLE
TO AWARDS
(a)
All
Awards
(1)
Award
Provisions
.
The
Administrator will determine the terms of all Awards, subject to the limitations
provided herein. By accepting any Award granted hereunder, the Participant
agrees to the terms of the Award and the Plan. Notwithstanding any provision
of
this Plan to the contrary, awards of an acquired company that are converted,
replaced or adjusted in connection with the acquisition may contain terms and
conditions that are inconsistent with the terms and conditions specified herein,
as determined by the Administrator. No Award shall be legally effective unless
it is in writing and the document is signed by the Administrator. The
Administrator shall have the power to accelerate the vesting of any Award
granted
under the Plan at any time following the grant of the Award.
(2)
Term
of Plan
.
No
Awards
may be made under this Plan ten (10) years after date of its adoption by the
Board, but previously granted Awards may continue beyond that date in accordance
with their terms
.
(3)
Transferability
.
An
ISO
may not be transferred except to the extent permitted by Section 422 of the
Code. An Award other than an ISO may not be transferred except to the extent
set
forth in the Award.
(4)
Dividend
Equivalents, Etc.
The
Administrator may provide for the payment of amounts in lieu of cash dividends
or other cash distributions with respect to an Award; however, no dividends
or
other distributions may be paid in connection with an Award of a Stock Option
or
SAR except to the extent such Stock Option or SAR has been properly
exercised.
(5)
Rights
Limited
.
Nothing
in the Plan will be construed as giving any person the right to continued
employment or service with the Company or its Affiliates, or any rights as
a
stockholder except as to shares of Stock actually issued under the Plan. The
loss of existing or potential profit in Awards will not constitute an element
of
damages in the event of termination of Employment for any reason, even if the
termination is in violation of an obligation of the Company or Affiliate to
the
Participant.
(6)
Section 162(m)
.
This
Section 6(a)(6) applies to any Performance Award intended to qualify as
performance-based for the purposes of Section 162(m) other than a Stock
Option or SAR. In the case of any Performance Award to which this
Section 6(a)(6) applies, the Plan and such Award will be construed to the
maximum extent permitted by law in a manner consistent with qualifying the
Award
for the performance-based compensation exception under Section 162(m). With
respect to such Performance Awards, the Administrator will preestablish, in
writing, one or more specific Performance Criteria no later than 90 days
after the commencement of the period of service to which the performance relates
(or at such earlier time as is required to qualify the Award as
performance-based under Section 162(m)). Prior to grant, vesting or payment
of the Performance Award, as the case may be, the Administrator will certify
whether the applicable Performance Criteria have been attained and such
determination will be final and conclusive. No Performance Award to which this
Section 6(a)(6) applies may be granted after the first meeting of the
stockholders of the Company held five (5) or more years after the date of
approval of this Plan by the Stockholders of the Company until the listed
performance measures set forth in the definition of “Performance Criteria” (as
originally approved or as subsequently amended) have been resubmitted to and
reapproved by the stockholders of the Company in accordance with the
requirements of Section 162(m) of the Code, unless such grant is made
contingent upon such approval.
(7)
Section 409A
of the Code.
(i)
Awards
under the Plan are intended either to be exempt from the rules of
Section 409A of the Code or to satisfy those rules and shall be construed
accordingly. However, the Company shall not be liable to any Participant or
other holder of an Award with respect to any Award-related adverse tax
consequences arising under Section 409A or other provision of the Code.
(ii)
If
any
provision of the Plan or an Award agreement contravenes any regulations or
Treasury guidance promulgated under Code Section 409A or could cause an Award
to
be subject to the interest and penalties under Code Section 409A, such provision
of the Plan or Award shall be deemed automatically modified to maintain, to
the
maximum extent practicable, the original intent of the applicable provision
without violating the provisions of Code Section 409A. Moreover, any
discretionary authority that the Administrator may have pursuant to the Plan
shall not be applicable to an Award that is subject to Code Section 409A to
the
extent such discretionary authority will contravene Section 409A or the
regulations or guidance promulgated thereunder.
(iii)
Notwithstanding
any provisions of this Plan or any Award granted hereunder to the contrary,
no
acceleration shall occur with respect to any Award to the extent such
acceleration would cause the Plan or an Award granted hereunder to fail to
comply with Code Section 409A.
(iv)
Notwithstanding
any provisions of this Plan or any
applicable Award agreement to the contrary, no payment shall be made with
respect to any Award granted under this Plan to a “specified employee” (as such
term is defined for purposes of Code Section 409A) prior to the six-month
anniversary of the employee’s separation of service to the extent such six-month
delay in payment is required to comply with Code Section 409A.
(v)
In
the
case of an Award providing for the payment of deferred compensation subject
to
Section 409A of the Code, any payment of such deferred compensation by reason
of
a Change in Control shall be made only if the Change in Control is one described
in subsection (a)(2)(A)(v) of Section 409A and the guidance thereunder and
shall
be paid consistent with the requirements of Section 409A. If any deferred
compensation that would otherwise be payable by reason of a Change in Control
cannot be paid by reason of the immediately preceding sentence, it shall be
paid
as soon as practicable thereafter consistent with the requirements of Section
409A, as determined by the Administrator.
(8)
For
Cause Terminations
.
Notwithstanding anything to the contrary contained in this Plan or in any Award,
all Awards held by a Participant whose employment, directorship, consulting,
service or other relationship with the Company or any Affiliate was terminated
for “Cause” shall, subject to the discretion of the Administrator to provide
otherwise, terminate immediately as of the date of such termination for “Cause.
A termination of a Participant’s employment, directorship, consulting, service
or other relationship with the Company or any Affiliate shall be for “Cause” if
the Administrator determines that the Participant: (i) was guilty of fraud,
gross negligence or willful misconduct in the performance of his or her duties
for the Company or any Affiliate, (ii) willfully and continually failed to
perform substantially the Participant’s duties with the Company or any Affiliate
(other than any such failure resulting from incapacity due to Disability) after
delivery of written demand for substantial performance to the Participant by
the
Board, the Administrator or the Chief Executive Officer of the Company that
specifically identified the manner in which the Board, the Administrator or
the
Chief Executive Officer believed the Participant did not substantially perform
his or her duties, (iii) breached or violated, in a material respect, any
agreement between the Participant and the Company or any Affiliate or any of
the
Company’s or its Affiliates’ codes of conduct or corporate policies, including
policy statements regarding conflicts-of-interest, insider trading or
confidentiality, (iv) committed a material act of dishonesty or breach of trust,
(v) acted in a manner that was inimical or injurious, in a material respect,
to
the business or interests of the Company or any of its Affiliates, or (vi)
was
convicted of, or plead guilty or nolo contendere to, a felony or any other
crime
involving moral turpitude which subjects, or if generally known, would subject,
the Company or any of its Affiliates to public ridicule or
embarrassment.
(b)
Stock
Options and SARs
(1)
Duration
of Stock Options and SARs.
The
latest date on which a Stock Option or a SAR may be exercised will be the tenth
anniversary of the date the Stock Option (fifth anniversary in the case of
an
ISO granted to a ten percent shareholder within the meaning of Section 422(b)(6)
of the Code) or SAR was granted, or such earlier date as may have been specified
by the Administrator at the time the Stock Option or SAR was
granted.
(2)
Vesting
.
The
Administrator shall fix the term during which each Stock Option or SAR may
be
exercised, but no Stock Option or SAR shall be exercisable after the tenth
anniversary of its date of grant. A Stock Option and an SAR shall become
exercisable as provided in the Award. Notwithstanding any other provision of
the
Plan, the Administrator may determine with respect to an Award that the date
on
which any outstanding Stock Option or SAR or any portion thereof is exercisable
shall be advanced to an earlier date or dates designated by the Administrator
in
accordance with such terms and subject to such conditions, if any, as the
Administrator shall specify.
(3)
Time
and Manner of Exercise
.
Unless
the Administrator expressly provides otherwise, an Award requiring exercise
by
the holder will not be deemed to have been exercised until the Administrator
receives a notice of exercise (in form acceptable to the Administrator) signed
by the appropriate person and accompanied by any payment required under the
Award. If the Award is exercised by any person other than the Participant,
the
Administrator may require satisfactory evidence that the person exercising
the
Award has the right to do so.
(4)
Exercise
Price.
The
exercise price (or in the case of a SAR, the base price above which appreciation
is to be measured) of each Award requiring exercise shall be 100% (in the case
of an ISO granted to a ten-percent shareholder within the meaning of
Section 422(b)(6) of the Code, 110%) of the fair market value of the Stock
subject to the Award, determined as of the date of grant, or such higher amount
as the Administrator may determine in connection with the grant. Notwithstanding
the foregoing, a Stock Option (whether or not an ISO) may be issued or assumed
with an exercise price determined according to the provisions of Section 424(a)
of the Code, if such issuance or assumption of such Option is pursuant to a
transaction described in Section 424(a) of the Code. If and to the extent
required by the corporation law of the state of incorporation of the Company,
the exercise price paid for each share of Stock shall not be less than the
par
value per share of the Stock.
(5)
Payment
Of Exercise Price
.
Where
the
exercise of an Award is to be accompanied by payment, the Administrator shall
state in the Award the required or permitted forms of payment.
(6)
Stock
Option Forms
.
Unless
otherwise determined by the Administrator and subject to the authority of the
Administrator set forth in Section 3 hereof, an ISO granted pursuant to this
Plan to an Employee shall be issued substantially in the form set forth in
Appendix I hereof, which form is hereby incorporated by reference and made
a
part hereof, and shall contain substantially the terms and conditions set forth
therein. Subject to the authority of the Administrator set forth in Section
3
hereof, a Stock Option which is not an ISO granted pursuant to this Plan to
an
Employee shall be issued substantially in the form set forth in Appendix II
hereof, which form is hereby incorporated by reference and made a part hereof,
and shall contain substantially the terms and conditions set forth therein.
Subject to the authority of the Administrator set forth in Section 3 hereof,
a
Stock Option granted pursuant to this Plan to an individual or entity which
is
not an Employee shall be issued substantially in the form set forth in Appendix
III hereof, which form is hereby incorporated by reference and made a part
hereof, and shall contain substantially the terms and conditions set forth
therein. At the time of the grant of a Stock Option, the Administrator may,
in
the Administrator’s sole discretion, amend or supplement any of the option terms
contained in Appendix I, II or III hereof for any particular optionee, provided
that with respect to an ISO, the Stock Option satisfies the requirements for
an
ISO set forth in the Code.
(7)
Notification
by Employees
.
Any
Employee who disposes of shares acquired upon the exercise of an ISO either
(i)
within two years from the date of grant of such ISO or (ii) within one year
after the transfer of such shares to the Employee shall notify the Company
of
such disposition and of the amount realized upon such disposition.
(c)
Restricted
Stock and Other Awards Not Requiring Exercise
(1)
Consideration
in General
.
In
general, Awards that do not require exercise may be made in exchange for such
lawful consideration, including services, as the Administrator determines.
Any
purchase price payable by a Participant to the Company for Stock under an Award
not requiring exercise shall be paid in cash or check acceptable to the
Administrator, through the delivery of shares of Stock that have been
outstanding for at least six months (unless the Administrator approves a shorter
period) and that have a fair market value equal to the purchase price, if and
to
the extent permitted by the Administrator, by delivery to the Company of a
promissory note of the Participant, payable on such terms as are specified
by
the Administrator, or by any combination of the foregoing permissible forms
of
payment.
(2)
Vesting
.
Restricted Stock shall be granted subject to such restrictions on the full
enjoyment of the shares as the Administrator shall specify; which restrictions
may be based on the passage of time, satisfaction of Performance Criteria,
or
the occurrence of one or more events; and shall lapse separately or in
combination upon such conditions and at such time or times, in installments
or
otherwise, as the Administrator shall specify. No Award of Restricted Stock
made
on or after July 31, 2008 which restrictions are based solely on the passage
of
time will fully vest in less than three years from the date of grant of the
Award . No Award of Restricted Stock made on or after July 31, 2008 which
restrictions are based on the satisfaction of Performance Criteria will provide
for a performance period of less than one year. Notwithstanding the foregoing,
the Company may grant Awards of Restricted Stock on or after July 31, 2008
covering up to five percent (5%) of the Stock available for future Awards under
the Plan without complying with the provisions contained in the two prior
sentences of this paragraph.
(3)
Restricted
Stock Agreement Forms
.
Restricted Stock awarded pursuant to this Plan to an Employee which is intended
to be time vested and Restricted Stock awarded to an individual or entity who
or
which is not an Employee which is intended to be time vested shall contain
such
terms as determined by the Administrator and shall be subject to the terms
of an
agreement executed by the Company and the Participant receiving the Restricted
Stock award containing such terms as the Administrator shall determine.
7.
AMENDMENT,
SUPPLEMENT, WAIVER AND TERMINATION
The
Board
may at any time or times amend, supplement or waive the Plan (or any of the
provisions thereof) or any outstanding Award (or any of the provisions thereof)
for any purpose which may at the time be permitted by law, and may at any time
terminate the Plan as to any future grants of Awards;
provided
,
that
except as otherwise expressly provided in the Plan the Board may not, without
the Participant’s consent, alter the terms of an Award so as to affect adversely
the Participant’s rights under the Award, unless the Administrator expressly
reserved the right to do so at the time of the Award. Any amendments,
supplement, waiver or termination to the Plan shall be conditioned upon
stockholder approval only to the extent, if any, such approval is required
by
law (including the Code and applicable stock exchange or trading market
requirements), as determined by the Administrator. Moreover, with respect to
any
Award granted on or after July 31, 2008, any restrictions placed on an Award
granted under the Plan shall not be waived by the Board or the Company, except
in the case of the death, disability or retirement of the recipient of the
Award, or in the event of a “Change of Control” as provided in the Plan.
8.
OTHER
COMPENSATION ARRANGEMENTS
The
existence of the Plan or the grant of any Award will not in any way affect
the
Company’s right to award a Participant bonuses or other compensation in addition
to Awards under the Plan.
9.
WAIVER
OF JURY TRIAL
By
accepting an Award under the Plan, each Participant
waives
any right to a trial by jury
in any
action, proceeding or counterclaim concerning any rights under the Plan and
any
Award, or under any amendment, waiver, consent, instrument, document or other
agreement delivered or which in the future may be delivered in connection
therewith. By accepting an Award under the Plan, each Participant certifies
that
no officer, representative, or attorney of the Company has represented,
expressly or otherwise, that the Company would not, in the event of any action,
proceeding or counterclaim, seek to enforce the foregoing waiver.
10.
MISCELLANEOUS
(a)
No
Shareholder Rights.
The
holder of an Award shall have no rights as a Company shareholder with respect
thereto unless, and until the date as of which, shares of Stock are in fact
issued upon exercise or in payment with respect to such Award.
(b)
Securities
Restrictions.
No
shares of Stock shall be issued, delivered or transferred upon exercise or
in
payment of any Award granted hereunder unless and until all legal requirements
applicable to the issuance, delivery or transfer of such shares have been
complied with to the satisfaction of the Administrator, and the Company,
including, without limitation, compliance with the provisions of the Securities
Act of 1933, the Securities Exchange Act of 1934 and the applicable requirements
of the exchanges or trading markets on which the Company’s Stock may, at the
time, be listed. The Administrator and the Company shall have the right to
condition any issuance of shares of Stock made to any Participant hereunder
on
such Participant’s undertaking in writing to comply with such restrictions on
his or her subsequent disposition of such shares as the Administrator and/or
the
Company shall deem necessary or advisable as a result of any applicable law,
regulation or official interpretation thereof, and certificates representing
such shares may be legended to reflect any such restrictions.
(c)
Taxes.
The
Company shall have the right to deduct from all Awards hereunder paid in cash
any federal, state, local or foreign taxes required by law to be withheld with
respect to such cash Awards. In the case of Awards to be distributed in Stock,
the Company shall have the right to require, as a condition of such
distribution, that the Participant or other person receiving such Stock either
(i) pay to the Company at the time of distribution thereof the amount of any
such taxes which the Company is required to withhold with respect to such Stock
or (ii) make such other arrangements as the Company may authorize from time
to
time to provide for such withholding including without limitation having the
number of the units of the Award cancelled or the number of the shares of Stock
to be distributed reduced by an amount with a value equal to the value of such
taxes required to be withheld.
(d)
No
Employment Right.
No
Employee, director or consultant of the Company, or of any Affiliate of the
Company, shall have any claim or right to be granted an Award under this Plan.
Neither this Plan nor any action taken hereunder shall be construed as giving
any Employee any right to be retained in the employ of the Company or any
Affiliate or any director or consultant any right to continue as a director
or
consultant of the Company or any Affiliate.
(e)
Stock
to be Used.
Distributions of shares of Stock upon exercise, in payment or in respect of
Awards made under this Plan may be made either from shares of authorized but
unissued Stock reserved for such purpose by the Board or from shares of
authorized and issued Stock reacquired by the Company and held in its treasury,
as from time to time determined by the Administrator. The obligation of the
Company to make delivery of Awards in cash or Stock shall be subject to currency
or other restrictions imposed by any government.
(f)
Expenses
of the Plan.
The
costs and expenses of administering this Plan shall be borne by the Company
or
its Affiliates and not charged to any Award or to any Participant.
(g)
Plan
Unfunded.
This
Plan shall be unfunded. The Company shall not be required to establish any
special or separate fund or to make any other segregation of assets to assure
the payment of any Award under this Plan and payment of awards shall be
subordinate to the claims of the Company’s general creditors.
(h)
Corporate
Action.
Corporate action with respect to an Award to a Participant shall be deemed
completed as of the date when the Administrator authorizes the Award, regardless
of when the written documentation for the Award is actually delivered to, or
acknowledged or agreed to by, the Participant.
(i)
Governing
Law.
This
Plan shall be governed by the laws of the state of incorporation of the Company
and shall be construed for all purposes in accordance with the laws of such
state.
EXHIBIT
A
Definition
of Terms
The
following terms, when used in the Plan, will have the meanings and be subject
to
the provisions set forth below:
“Administrator”:
The
Committee, provided that so long as any class of the Company’s common equity
securities is required to be registered under Section 12 of the Securities
Exchange Act of 1934 (the “1934 Act”), the Committee shall consist of two or
more directors, all of whom shall be “non-employee directors” within the meaning
of Rule 16b-3 promulgated under the 1934 Act, and further provided that all
of the Committee members shall be “independent directors” as defined in the
applicable rules of the principal exchange or quotation system on which the
Company’s common equity is listed for trading. In addition, if practicable the
Committee members shall be “outside directors” within the meaning of
Section 162(m); and provided further, that subject to any prohibition under
applicable law, including any applicable exchange or trading market
requirements, the Committee may delegate (i) to one or more of its members
such of its duties, powers and responsibilities as it may determine (other
than
the allocation of Awards to the executive officers of the Company, persons
who
are officers of the Company within the meaning of Section 16 of the Securities
Exchange Act of 1934 and the rules promulgated thereunder (“Section 16
officers”), or the directors of the Company); (ii) to one or more officers
of the Company the authority to allocate Awards among such persons (other than
to the executive officers of the Company or Section 16 officers or the directors
of the Company) eligible to receive Awards under the Plan as such delegated
officer or officers determine consistent with such delegation;
provided,
that
with respect to any delegation described in this clause (ii) the Committee
(or a properly delegated member or members of such Committee) shall (x) have
authorized the issuance of a specified number of shares of Stock under such
Awards and (y) shall have specified the consideration, if any, to be paid
therefor; and (iii) to such Employees or other persons as it determines
such ministerial tasks as it deems appropriate. In the event of any delegation
described in the preceding sentence, the term “Administrator” shall include the
person or persons so delegated to the extent of such delegation.
“Affiliate”:
Any
corporation or other entity owning, directly or indirectly, 50% or more of
the
outstanding Stock of the Company, or in which the Company or any such
corporation or other entity owns, directly or indirectly, 50% or more of the
outstanding capital stock (determined by aggregate voting rights) or other
voting interests. Notwithstanding the foregoing, with respect to an ISO, the
term “Affiliate”, as used herein, shall refer only to the Company or a Parent
Corporation or a Subsidiary Corporation.
“Award”:
The
agreement or other document evidencing any or a combination of the following:
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(iii)
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Restricted
Stock (also called “Restricted
Shares”).
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(v)
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Stock
Units, including Restricted Stock
Units.
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“Board”:
The
Board of Directors of the Company.
“Change
in Control”:
An event
or events, in which:
(A)
any
“person” as such term is used in Sections 13(d) and 14(d) of the
1934 Act (other than (i) the Company, (ii) any subsidiary of the
Company, (iii) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of any subsidiary of the Company,
(iv) any company owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of
the
Company, or (v) any individual or entity which on the date of adoption of this
Plan by the Board beneficially owned securities of the Company representing
10%
or more of the Company’s then outstanding securities), is or becomes the
“beneficial owner” (as defined in Section 13(d) of the 1934 Act),
together with all affiliates and Associates (as such terms are used in
Rule 12b-2 of the General Rules and Regulations under the 1934 Act) of
such person, directly or indirectly, of securities of the Company representing
more than 15% of the combined voting power of the Company’s then outstanding
securities (other than pursuant to a bona fide underwriting agreement relating
to a public distribution of the securities of the Company) or such person
commences a tender or exchange offer for more than 15% of the combined voting
power of the Company’s then outstanding securities;
(B)
the
stockholders of the Company approve a merger or consolidation of the Company
with any other company, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding securities under
an
employee benefit plan of the Company or any subsidiary of the Company, more
than
50% of the combined voting power of the voting securities of the Company or
such
surviving entity outstanding immediately after such merger or consolidation
or
(ii) a merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) after which no “person” (with the method of
determining “beneficial ownership” used in clause (A) of this
definition) owns more than 50% of the combined voting power of the securities
of
the Company or the surviving entity of such merger or
consolidation;
(C)
during
any period of two consecutive years (not including any period prior to the
execution of the Plan), individuals who at the beginning of such period
constitute the Board, and any new director (other than a director designated
by
a person who has conducted or threatened a proxy contest, or has entered into
an
agreement with the Company to effect a transaction described in clause (A),
(B)
or (D) of this definition) whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least a
majority of the directors then still in office, who either were directors at
the
beginning of the period or whose election or nomination for election was
previously so approved cease for any reason to constitute at least a majority
thereof;
(D)
the
sale
or other disposition by the Company of all or substantially all of the Company’s
assets; or
(E)
the
dissolution or complete liquidation of the Company.
“Code”:
The
U.S. Internal Revenue Code of 1986 as from time to time amended and in
effect, or any successor statute as from time to time in effect.
“Committee”:
The
Committee appointed by the Board to administer this Plan.
“Common
Stock”:
See
definition of “Stock”.
“Company”:
Iconix
Brand Group, Inc.
“Disability”
shall
mean permanent and total disability of an employee or director participating
in
the Plan as determined by the Administrator in accordance with uniform
principles consistently applied, upon the basis of such evidence as the
Administrator deems necessary and desirable. Notwithstanding the foregoing,
with
respect to an Award that is subject to Code Section 409A, no condition shall
constitute a “Disability” for purposes of the Plan unless such condition also
constitutes a disability as defined under Code Section 409A and, in the case
of
an ISO, Code Section 22(e)(3).
“Employee”:
Any
person (including an officer) who is employed by the Company or an
Affiliate.
“Employment”:
A
Participant’s employment with the Company or its Affiliates. Employment will be
deemed to continue, unless the Administrator expressly provides otherwise,
so
long as the Participant is employed by, or otherwise is providing services
in a
capacity described in Section 5 to the Company or its Affiliates. If a
Participant’s employment or other service relationship is with an Affiliate and
that entity ceases to be an Affiliate, the Participant’s Employment will be
deemed to have terminated when the entity ceases to be an Affiliate unless
the
Participant transfers Employment to the Company or its remaining Affiliates
or
the Administrator expressly determines otherwise. Notwithstanding the foregoing,
with respect to an ISO, the term “Affiliate”, as used herein, shall refer only
to the Company or a Parent Corporation or a Subsidiary Corporation.
“ISO”:
A Stock
Option intended to be an “incentive stock option” within the meaning of Section
422 of the Code. Each option granted pursuant to the Plan will be treated as
providing by its terms that it is to be a non-incentive stock option unless,
as
of the date of grant, it is expressly designated as an ISO.
“
Parent
Corporation”:
The
term
“parent corporation” as used in any Stock Option granted pursuant to this Plan,
shall (except as otherwise provided in the Award) have the meaning that is
ascribed to that term when contained in Section 422(b) of the Code and the
regulations thereunder, and the Company shall be deemed to be the grantor
corporation for purposes of applying such meaning.
“Participant”:
A person
who is granted an Award under the Plan.
“Performance
Award”:
An Award
subject to Performance Criteria. The Administrator in its discretion may grant
Performance Awards that are intended to qualify for the performance-based
compensation exception under Section 162(m) and Performance Awards that are
not
intended so to qualify.
“Performance
Criteria”:
Specified criteria, other than the mere continuation of Employment or the mere
passage of time, the satisfaction of which is a condition for the grant,
exercisability, vesting or full enjoyment of an Award. For purposes of Awards
that are intended to qualify for the performance-based compensation exception
under Section 162(m), a Performance Criterion will mean an objectively
determinable measure of performance relating to any or any combination of the
following (measured either absolutely or by reference to an index or indices
and
determined either on a consolidated basis or, as the context permits, on a
divisional, subsidiary, line of business, project or geographical basis or
in
combinations thereof): sales; revenues; assets; costs; earnings before or after
deduction for all or any portion of interest, taxes, depreciation, or
amortization, whether or not on a continuing operations or an aggregate or
per
share basis; return on equity, investment, capital or assets; one or more
operating ratios; borrowing levels, leverage ratios or credit rating; market
share; capital expenditures; cash flow; stock price; stockholder return or
stockholder value; sales of particular products or services; customer
acquisition or retention; safety, health or environmental affairs performance;
compliance; acquisitions and divestitures (in whole or in part); joint ventures
and strategic alliances; spin-offs, split-ups and the like; reorganizations;
or
recapitalizations, restructurings, financings (issuance of debt or equity)
or
refinancings. A Performance Criterion and any targets with respect thereto
determined by the Administrator need not be based upon an increase, a positive
or improved result or avoidance of loss. To the extent consistent with the
requirements for satisfying the performance-based compensation exception under
Section 162(m), the Administrator may provide in the case of any Award intended
to qualify for such exception that one or more of the Performance Criteria
applicable to such Award will be adjusted in an objectively determinable manner
to reflect events (for example, but without limitation, acquisitions or
dispositions) occurring during the performance period that affect the applicable
Performance Criterion or Criteria.
“Plan”:
Iconix
Brand Group, Inc. 2006 Equity Incentive Plan as from time to time amended and
in
effect.
“Restricted
Stock”:
Stock
subject to restrictions requiring that it be redelivered or offered for sale
to
the Company if specified conditions are not satisfied.
“Restricted
Stock Unit”:
A Stock
Unit that is, or as to which the delivery of Stock or cash in lieu of Stock
is,
subject to the satisfaction of specified performance or other vesting
conditions.
“Section
162(m)”:
Section
162(m) of the Code.
“SAR”:
A right
entitling the holder upon exercise to receive an amount (payable in shares
of
Stock of equivalent value or cash) equal to the excess of the fair market value
of the shares of Stock subject to the right over the fair market value of such
shares at the date of grant.
“Stock”:
Common
Stock of the Company, par value $.001 per share.
“Stock
Option”:
An
option entitling the holder to acquire shares of Stock upon payment of the
exercise price.
“Stock
Unit”:
An
unfunded and unsecured promise, denominated in shares of Stock, to deliver
Stock
or cash measured by the value of Stock in the future.
“Subsidiary
Corporation”:
The
term
"subsidiary corporation" as used in any Stock Option granted pursuant to this
Plan, shall (except as otherwise provided in the Award) have the meaning that
is
ascribed to that term when contained in Section 422(b) of the Code and the
regulations thereunder, and the Company shall be deemed to be the grantor
corporation for purposes of applying such meaning.
“Unrestricted
Stock”:
Stock
that is not subject to any restrictions under the terms of the
Award.
APPENDIX
I
INCENTIVE
STOCK OPTION
To:
____________________________
Name
____________________________
Address
Date
of
Grant: _____________________
You
are
hereby granted an option, effective as of the date hereof, to purchase
__________ shares of common stock, $.001 par value ("Common Stock"), of Iconix
Brand Group, Inc., a Delaware corporation (the "Company"), at a price of $
per
share pursuant to the Company's 2006 Equity Incentive Plan (the
"Plan").
This
option shall terminate and is not exercisable after ten years from the date
of
its grant (the "Scheduled Termination Date"), except if terminated earlier
as
hereafter provided.
Your
option may first be exercised on and after one year from the date of grant,
but
not before that time. On and after one year and prior to two years from the
date
of grant, your option may be exercised for up to 20% of the total number of
shares subject to the option minus the number of shares previously purchased
by
exercise of the option (as adjusted for any change in the outstanding shares
of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances). Each succeeding year thereafter your
option may be exercised for up to an additional 20% of the total number of
shares subject to the option minus the number of shares previously purchased
by
exercise of the option (as adjusted for any change in the outstanding shares
of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances). Thus, this option is fully exercisable
on and after five years after the date of grant, except if terminated earlier
as
provided herein.
You
may
exercise your option by giving written notice to the Secretary of the Company
on
forms supplied by the Company at its then principal executive office,
accompanied by payment of the option price for the total number of shares you
specify that you wish to purchase. The payment may be in any of the following
forms: (a) cash, which may be evidenced by a check and includes cash
received from a stock brokerage firm in a so-called "cashless exercise";
(b) (unless prohibited by the Administrator) certificates representing
shares of Common Stock of the Company, which will be valued by the Secretary
of
the Company at the fair market value per share of the Company's Common Stock
(as
determined in accordance with the Plan) on the date of delivery of such
certificates to the Company, accompanied by an assignment of the stock to the
Company; or (c) (unless prohibited by the Administrator) any combination of
cash and Common Stock of the Company valued as provided in clause (b). The
use of the so-called "attestation procedure") to exercise a stock option may
be
permitted by the Administrator. Any assignment of stock shall be in a form
and
substance satisfactory to the Secretary of the Company, including guarantees
of
signature(s) and payment of all transfer taxes if the Secretary deems such
guarantees necessary or desirable.
Your
option will, to the extent not previously exercised by you, terminate three
months after the date on which your employment by the Company or a Company
subsidiary corporation is terminated other than: (i) by reason of Disability
(as
defined in the Plan) or death, in which case your option will terminate one
year
from the date of termination of employment due to Disability or death (but
in no
event later than the Scheduled Termination Date) or (ii) for cause (as defined
in the Plan) or your resignation, in which case your option will terminate
immediately and you will forfeit any right to exercise the option. After the
date your employment is terminated, as aforesaid (other than for the reasons
stated in clause ii), you may exercise this option only for the number of shares
which you had a right to purchase and did not purchase on the date your
employment terminated. If you are employed by a Company subsidiary corporation,
your employment shall be deemed to have terminated on the date your employer
ceases to be a Company subsidiary corporation, unless you are on that date
transferred to the Company or another Company subsidiary corporation. Your
employment shall not be deemed to have terminated if you are transferred from
the Company to a Company subsidiary corpora-tion, or vice versa, or from one
Company subsidiary corporation to another Company subsidiary
corporation.
If
you
die while employed by the Company or a Company subsidiary corporation, your
executor or administrator, as the case may be, may, at any time within one
year
after the date of your death (but in no event later than the Scheduled
Termination Date), exercise the option as to any shares which you had a right
to
purchase and did not purchase during your lifetime. If your employment with
the
Company or a Company parent or subsidiary corporation is terminated by reason
of
your Disability, you or your legal guardian or custodian may at any time within
one year after the date of such termination (but in no event later than the
Scheduled Termination Date), exercise the option as to any shares which you
had
a right to purchase and did not purchase prior to such termination. Your
executor, administrator, guardian or custodian must present proof of his
authority satisfactory to the Company prior to being allowed to exercise this
option.
In
the
event of any change in the outstanding shares of the Common Stock of the Company
by reason of a stock dividend, stock split, combination of shares,
recapitalization, merger, consolidation, transfer of assets, reorganization,
conversion or what the Administrator deems in its sole discretion to be similar
circumstances, the number and kind of shares subject to this option and the
option price of such shares shall be appropriately adjusted in a manner to
be
determined in the sole discretion of the Administrator, whose decision shall
be
final, binding and conclusive in the absence of clear and convincing evidence
of
bad faith.
In
the event of a liquidation or proposed liquidation of the Company, including
(but not limited to) a transfer of assets followed by a liquidation of the
Company, or in the event of a Change in Control (as defined in the Plan) or
proposed Change in Control, the Administrator shall have the right to accelerate
this option and/or require you to exercise this option upon thirty (30) days
prior written notice to you. If at the time such written notice is given this
option is not otherwise exercisable, the written notice will set forth your
right to exercise this option to the extent accelerated by the Administrator.
In
the event this option is not exercised by you within the thirty (30) day period
set forth in such written notice, this option shall terminate on the last day
of
such thirty (30) day period, notwithstanding anything to the contrary contained
in this option.
This
option is not transferable otherwise than by will or the laws of descent and
distribution, and is exercisable during your lifetime only by you, including,
for this purpose, your legal guardian or custodian in the event of Disability.
Until the option price has been paid in full pursuant to due exercise of this
option and the purchased shares are delivered to you, you do not have any rights
as a shareholder of the Company. The Company reserves the right not to deliver
to you the shares purchased by virtue of the exercise of this option during
any
period of time in which the Company deems, in its sole discretion, that such
delivery would violate a federal, state, local or securities exchange rule,
regulation or law.
Notwithstanding
anything to the contrary contained herein, this option is not exercisable until
all the following events occur and during the following periods of
time:
(a)
Until
the
Plan pursuant to which this option is granted is approved by the shareholders
of
the Company in the manner required by any applicable provision of the Code
(as
defined in the Plan) and the regulations thereunder and any applicable
securities exchange or listing rule or agreement;
(b)
Until
this option and the optioned shares are approved, registered and listed with
such federal, state, local and foreign regulatory bodies or agencies and
securities exchanges as the Company may deem necessary or desirable, or the
Company deems such option or optioned shares to be exempted therefrom;
(c)
During
any period of time in which the Company deems that the exercisability of this
option, the offer to sell the shares optioned hereunder, or the sale thereof,
may violate a federal, state, local or foreign law, rule or regulation, or
any
applicable securities exchange or listing rule or agreement, or may cause the
Company to be legally obligated to issue or sell more shares than the Company
is
legally entitled to issue or sell; or
(d)
Until
you
have paid or made suitable arrangements to pay (which may include payment
through the surrender of Common Stock, unless prohibited by the Administrator)
(i) all federal, state, local and foreign tax withholding required by the
Company in connection with the option exercise and (ii) the employee's portion
of other federal, state, local and foreign payroll and other taxes due in
connection with the option exercise.
The
following two paragraphs shall be applicable if, on the date of exercise of
this
option, no registration statement and current prospectus under the Securities
Act of 1933 covers the Common Stock to be purchased pursuant to such exercise,
and shall continue to be applicable for so long as such registration has not
occurred and such current prospectus is not available:
(a)
You
hereby agree, warrant and represent that you will acquire the Common Stock
to be
issued hereunder for your own account for investment purposes only, and not
with
a view to, or in connection with, any resale or other distribution of any of
such shares, except as hereafter permitted. You further agree that you will
not
at any time make any offer, sale, transfer, pledge or other disposition of
such
Common Stock to be issued hereunder without an effective registration statement
under the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Company to the effect
that the proposed transaction will be exempt from such registration. You agree
to execute such instruments, representations, acknowledgments and agreements
as
the Company may, in its sole discretion, deem advisable to avoid any violation
of federal, state, local or foreign law, rule or regulation, or any securities
exchange rule or listing agreement.
(b)
The
certificates for the Common Stock to be issued to you hereunder shall bear
the
following legend:
"The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or under applicable state securities laws.
The shares have been acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an effective registration
statement under the Securities Act of 1933, as amended, and under any applicable
state securities laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such registration."
The
foregoing legend shall be removed upon registration of the legended shares
under
the Securities Act of 1933, as amended, and under any applicable state laws,
and
the availability of a current prospectus, or upon receipt of any opinion of
counsel acceptable to the Company that such registration and current prospectus
are no longer required.
The
sole
purpose of the agreements, warranties, representations and legend set forth
in
the two immediately preceding paragraphs is to prevent violations of the
Securities Act of 1933, as amended, and any applicable state securities
laws.
It
is the
intention of the Company and you that this option shall, if possible, be an
"Incentive Stock Option" as that term is used in Section 422(b) of the Code
and the regulations thereunder. In the event this option is in any way
inconsistent with the legal requirements of the Code or the regulations
thereunder for an "Incentive Stock Option," this option shall be deemed
automatically amended as of the date hereof to conform to such legal
requirements, if such conformity may be achieved by amendment. To the extent
that the number of shares subject to this option which are exercisable for
the
first time exceed the $100,000 limitation contained in Section 422(d) of the
Code, this option will not be considered an Incentive Stock Option.
If
shares
of Common Stock acquired by exercise of this option are disposed of within
two
(2) years following the date of grant or one (1) year following the issuance
of
the shares to you (or any situation in which the option will be taxed as a
non-qualified option), you shall, immediately prior to such disposition, notify
the Company in writing of the date and terms of such disposition and provide
such other information regarding the disposition as the Company may reasonably
require
.
Nothing
herein shall modify your status as an at-will employee of the Company or any
of
its Affiliates (as defined in the Plan). Further, nothing herein guarantees
you
employment for any specified period of time. This means that either you or
the
Company or any of its Affiliates may terminate your employment at any time
for
any reason, with or without cause, or for no reason. You recognize that, for
instance, you may terminate your employment or the Company or any of its
Affiliates may terminate your employment prior to the date on which your option
becomes vested or exercisable.
You
understand and agree that the existence of this option will not affect in any
way the right or power of the Company or its shareholders to make or authorize
any or all adjustments, recapitalizations, reorganizations, or other changes
in
the Company’s capital structure or its business, or any merger or consolidation
of the Company, or any issuance of bonds, debentures, preferred or other stocks
with preference ahead of or convertible into, or otherwise affecting the common
shares or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise.
Any
notice you give to the Company must be in writing and either hand-delivered
or
mailed to the office of the General Counsel of the Company. If mailed, it should
be addressed to the General Counsel of the Company at its then main
headquarters. Any notice given to you will be addressed to you at your address
as reflected on the personnel records of the Company. You and the Company may
change the address for notice by like notice to the other. Notice will be deemed
to have been duly delivered when hand-delivered or, if mailed, on the day such
notice is postmarked.
Any
dispute or disagreement between you and the Company with respect to any portion
of this option (excluding Attachment A hereto) or its validity, construction,
meaning, performance or your rights hereunder shall, unless the Company in
its
sole discretion determines otherwise, be settled by arbitration, at a location
designated by the Company, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association or its successor, as amended from time
to time. However, prior to submission to arbitration you will attempt to resolve
any disputes or disagreements with the Company over this option amicably and
informally, in good faith, for a period not to exceed two weeks. Thereafter,
the
dispute or disagreement will be submitted to arbitration. At any time prior
to a
decision from the arbitrator(s) being rendered, you and the Company may resolve
the dispute by settlement. You and the Company shall equally share the costs
charged by the American Arbitration Association or its successor, but you and
the Company shall otherwise be solely responsible for your own respective
counsel fees and expenses. The decision of the arbitrator(s) shall be made
in
writing, setting forth the award, the reasons for the decision and award and
shall be binding and conclusive on you and the Company. Further, neither you
nor
the Company shall appeal any such award. Judgment of a court of competent
jurisdiction may be entered upon the award and may be enforced as such in
accordance with the provisions of the award.
This
option shall be subject to the terms of the Plan in effect on the date this
option is granted, which terms are hereby incorporated herein by reference
and
made a part hereof. In the event of any conflict between the terms of this
option and the terms of the Plan in effect on the date of this option, the
terms
of the Plan shall govern. This option constitutes the entire understanding
between the Company and you with respect to the subject matter hereof and no
amendment, supplement or waiver of this option, in whole or in part, shall
be
binding upon the Company unless in writing and signed by the President of the
Company. This option and the performances of the parties hereunder shall be
construed in accordance with and governed by the laws of the State of
Delaware.
In
consideration of the grant to you of this option, you hereby agree to the
confidentiality and non-interference provisions set forth in Attachment A
hereto.
Please
sign the copy of this option and return it to the Company's Secretary, thereby
indicating your understanding of and agreement with its terms and conditions,
including
Attachment A hereto.
ICONIX
BRAND GROUP, INC.
By:
_________________________________
ACKNOWLEDGMENT
I
hereby
acknowledge receipt of a copy of the Plan. I hereby represent that I have read
and understood the terms and conditions of the Plan and of this option,
including
Attachment A, hereto
.
I
hereby signify my understanding of, and my agreement with, the terms and
conditions of the Plan and of this option,
including
Attachment A, hereto
.
I agree
to accept as binding, conclusive, and final all decisions or interpretations
of
the Administrator concerning any questions arising under the Plan with respect
to this option. I accept this option in full satisfaction of any previous
written or verbal promise made to me by the Company or any of its Affiliates
with respect to option or stock grants.
|
Date: _____________
|
_____________________________
Signature
of Optionee
_____________________________
Print
Name
|
Attachment
A to Stock Option
Confidentiality
and Non-Interference.
(a)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, during your employment with the Company or at any time
thereafter, except with the express prior written consent of the Company or
pursuant to the lawful order of any judicial or administrative agency of
government, directly or indirectly, disclose, communicate or divulge to any
individual or entity, or use for the benefit of any individual or entity, any
knowledge or information with respect to the conduct or details of the Company's
business which you, acting reasonably, believe or should believe to be of a
confidential nature and the disclosure of which not to be in the Company's
interest.
(b)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, during your employment with the Company, except with
the
express prior written consent of the Company, directly or indirectly, whether
as
employee, owner, partner, member, consultant, agent, director, officer,
shareholder or in any other capacity, engage in or assist any individual or
entity to engage in any act or action which you, acting reasonably, believe
or
should believe would be harmful or inimical to the interests of the
Company.
(c)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, for a period of two years after your employment with
the
Company ceases for any reason whatsoever (whether voluntary or not), except
with
the express prior written consent of the Company, directly or indirectly,
whether as employee, owner, partner, member, consultant, agent, director,
officer, shareholder or in any other capacity, for your own account or for
the
benefit of any individual or entity, (i) solicit any customer of the Company
for
business which would result in such customer terminating their relationship
with
the Company; or (ii) solicit or induce any individual or entity which is an
employee of the Company to leave the Company or to otherwise terminate their
relationship with the Company.
(d)
The
parties agree that any breach by you of any of the covenants or agreements
contained in this Attachment A will result in irreparable injury to the Company
for which money damages could not adequately compensate the Company and
therefore, in the event of any such breach, the Company shall be entitled (in
addition to any other rights and remedies which it may have at law or in equity)
to have an injunction issued by any competent court enjoining and restraining
you and/or any other individual or entity involved therein from continuing
such
breach. The existence of any claim or cause of action which you may have against
the Company or any other individual or entity shall not constitute a defense
or
bar to the enforcement of such covenants. If the Company is obliged to resort
to
the courts for the enforcement of any of the covenants or agreements contained
in this Attachment A, or if such covenants or agreements are otherwise the
subject of litigation between the parties, and the Company prevails in such
enforcement or litigation, then the term of such covenants and agreements shall
be extended for a period of time equal to the period of such breach, which
extension shall commence on the later of (a) the date on which the original
(unextended) term of such covenants and agreements is scheduled to terminate
or
(b) the date of the final court order (without further right of appeal)
enforcing such covenant or agreement.
(e)
If
any
portion of the covenants or agreements contained in this Attachment A, or the
application hereof, is construed to be invalid or unenforceable, the other
portions of such covenant(s) or agreement(s) or the application thereof shall
not be affected and shall be given full force and effect without regard to
the
invalid or enforceable portions to the fullest extent possible. If any covenant
or agreement in this Attachment A is held unenforceable because of the area
covered, the duration thereof, or the scope thereof, then the court making
such
determination shall have the power to reduce the area and/or duration and/or
limit the scope thereof, and the covenant or agreement shall then be enforceable
in its reduced form.
(f)
For
purposes of this Attachment A, the term "the Company" shall include the Company,
any successor to the Company and all present and future direct and indirect
subsidiaries and affiliates of the Company.
APPENDIX
II
NON-QUALIFIED
STOCK OPTION FOR OFFICERS AND OTHER
EMPLOYEES
To:
____________________________
Name
____________________________
Address
Date
of
Grant: _____________________
You
are
hereby granted an option, effective as of the date hereof, to purchase
__________ shares of common stock, $.001 par value ("Common Stock"), of Iconix
Brand Group, Inc. , a Delaware corporation (the "Company"), at a price of $
per
share pursuant to the Company's 2006 Equity Incentive Plan (the
"Plan").
This
option shall terminate and is not exercisable after ten years from the date
of
its grant (the "Scheduled Termination Date"), except if terminated earlier
as
hereafter provided.
Your
option may first be exercised on and after one year from the date of grant,
but
not before that time. On and after one year and prior to two years from the
date
of grant, your option may be exercised for up to 20% of the total number of
shares subject to the option minus the number of shares previously purchased
by
exercise of the option (as adjusted for any change in the outstanding shares
of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances). Each succeeding year thereafter your
option may be exercised for up to an additional 20% of the total number of
shares subject to the option minus the number of shares previously purchased
by
exercise of the option (as adjusted for any change in the outstanding shares
of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances). Thus, this option is fully exercisable
on and after five years after the date of grant, except if terminated earlier
as
provided herein.
You
may
exercise your option by giving written notice to the Secretary of the Company
on
forms supplied by the Company at its then principal executive office,
accompanied by payment of the option price for the total number of shares you
specify that you wish to purchase. The payment may be in any of the following
forms: (a) cash, which may be evidenced by a check and includes cash
received from a stock brokerage firm in a so-called "cashless exercise";
(b) (unless prohibited by the Administrator) certificates representing
shares of Common Stock of the Company, which will be valued by the Secretary
of
the Company at the fair market value per share of the Company's Common Stock
(as
determined in accordance with the Plan) on the date of delivery of such
certificates to the Company, accompanied by an assignment of the stock to the
Company; or (c) (unless prohibited by the Administrator) any combination of
cash and Common Stock of the Company valued as provided in clause (b). The
use of the so-called "attestation procedure" to exercise a stock option may
be
permitted by the Administrator. Any assignment of stock shall be in a form
and
substance satisfactory to the Secretary of the Company, including guarantees
of
signature(s) and payment of all transfer taxes if the Secretary deems such
guarantees necessary or desirable.
Your
option will, to the extent not previously exercised by you, terminate three
months after the date on which your employment by the Company or a Company
subsidiary corporation is terminated other than: (i) by reason of Disability
(as
defined in the Plan) or death, in which case your option will terminate one
year
from the date of termination of employment due to Disability or death (but
in no
event later than the Scheduled Termination Date) or (ii) for cause (as defined
in the Plan) or your resignation, in which case your option will terminate
immediately and you will forfeit any right to exercise the option. After the
date your employment is terminated, as aforesaid (other than for the reasons
stated in clause ii), you may exercise this option only for the number of shares
which you had a right to purchase and did not purchase on the date your
employment terminated. If you are employed by a Company subsidiary corporation,
your employment shall be deemed to have terminated on the date your employer
ceases to be a Company subsidiary corporation, unless you are on that date
transferred to the Company or another Company subsidiary corporation. Your
employment shall not be deemed to have terminated if you are transferred from
the Company to a Company subsidiary corpora-tion, or vice versa, or from one
Company subsidiary corporation to another Company subsidiary
corporation.
If
you
die while employed by the Company or a Company subsidiary corporation, your
executor or administrator, as the case may be, may, at any time within one
year
after the date of your death (but in no event later than the Scheduled
Termination Date), exercise the option as to any shares which you had a right
to
purchase and did not purchase during your lifetime. If your employment with
the
Company or a Company parent or subsidiary corporation is terminated by reason
of
your Disability, you or your legal guardian or custodian may at any time within
one year after the date of such termination (but in no event later than the
Scheduled Termination Date), exercise the option as to any shares which you
had
a right to purchase and did not purchase prior to such termination. Your
executor, administrator, guardian or custodian must present proof of his
authority satisfactory to the Company prior to being allowed to exercise this
option.
In
the
event of any change in the outstanding shares of the Common Stock of the Company
by reason of a stock dividend, stock split, combination of shares,
recapitalization, merger, consolidation, transfer of assets, reorganization,
conversion or what the Administrator deems in its sole discretion to be similar
circumstances, the number and kind of shares subject to this option and the
option price of such shares shall be appropriately adjusted in a manner to
be
determined in the sole discretion of the Administrator, whose decision shall
be
final, binding and conclusive in the absence of clear and convincing evidence
of
bad faith.
In
the event of a liquidation or proposed liquidation of the Company, including
(but not limited to) a transfer of assets followed by a liquidation of the
Company, or in the event of a Change in Control (as defined in the Plan) or
proposed Change in Control, the Administrator shall have the right to accelerate
this option and/or require you to exercise this option upon thirty (30) days
prior written notice to you. If at the time such written notice is given this
option is not otherwise exercisable, the written notice will set forth your
right to exercise this option to the extent accelerated by the Administrator.
In
the event this option is not exercised by you within the thirty (30) day period
set forth in such written notice, this option shall terminate on the last day
of
such thirty (30) day period, notwithstanding anything to the contrary contained
in this option.
This
option is not transferable otherwise than by will or the laws of descent and
distribution, and is exercisable during your lifetime only by you, including,
for this purpose, your legal guardian or custodian in the event of Disability.
Until the option price has been paid in full pursuant to due exercise of this
option and the purchased shares are delivered to you, you do not have any rights
as a shareholder of the Company. The Company reserves the right not to deliver
to you the shares purchased by virtue of the exercise of this option during
any
period of time in which the Company deems, in its sole discretion, that such
delivery would violate a federal, state, local or securities exchange rule,
regulation or law.
Notwithstanding
anything to the contrary contained herein, this option is not exercisable until
all the following events occur and during the following periods of
time:
(a)
Until
the
Plan pursuant to which this option is granted is approved by the shareholders
of
the Company in the manner required by any applicable provision of the Code
(as
defined in the Plan) and the regulations thereunder and any applicable
securities exchange or listing rule or agreement;
(b)
Until
this option and the optioned shares are approved, registered and listed with
such federal, state, local and foreign regulatory bodies or agencies and
securities exchanges as the Company may deem necessary or desirable, or the
Company deems such option or optioned shares to be exempted therefrom;
(c)
During
any period of time in which the Company deems that the exercisability of this
option, the offer to sell the shares optioned hereunder, or the sale thereof,
may violate a federal, state, local or foreign law, rule or regulation, or
any
applicable securities exchange or listing rule or agreement, or may cause the
Company to be legally obligated to issue or sell more shares than the Company
is
legally entitled to issue or sell; or
(d)
Until
you
have paid or made suitable arrangements to pay (which may include payment
through the surrender of Common Stock, unless prohibited by the Administrator)
(i) all federal, state, local and foreign tax withholding required by the
Company in connection with the option exercise and (ii) the employee's portion
of other federal, state, local and foreign payroll and other taxes due in
connection with the option exercise.
The
following two paragraphs shall be applicable if, on the date of exercise of
this
option, no registration statement and current prospectus under the Securities
Act of 1933 covers the Common Stock to be purchased pursuant to such exercise,
and shall continue to be applicable for so long as such registration has not
occurred and such current prospectus is not available:
(a)
You
hereby agree, warrant and represent that you will acquire the Common Stock
to be
issued hereunder for your own account for investment purposes only, and not
with
a view to, or in connection with, any resale or other distribution of any of
such shares, except as hereafter permitted. You further agree that you will
not
at any time make any offer, sale, transfer, pledge or other disposition of
such
Common Stock to be issued hereunder without an effective registration statement
under the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Company to the effect
that the proposed transaction will be exempt from such registration. You agree
to execute such instruments, representations, acknowledgments and agreements
as
the Company may, in its sole discretion, deem advisable to avoid any violation
of federal, state, local or foreign law, rule or regulation, or any securities
exchange rule or listing agreement.
(b)
The
certificates for the Common Stock to be issued to you hereunder shall bear
the
following legend:
"The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or under applicable state securities laws.
The shares have been acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an effective registration
statement under the Securities Act of 1933, as amended, and under any applicable
state securities laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such registration."
The
foregoing legend shall be removed upon registration of the legended shares
under
the Securities Act of 1933, as amended, and under any applicable state laws
or
upon receipt of any opinion of counsel acceptable to the Company that said
registration is no longer required.
The
sole
purpose of the agreements, warranties, representations and legend set forth
in
the two immediately preceding paragraphs is to prevent violations of the
Securities Act of 1933, as amended, and any applicable state securities
laws.
It
is the
intention of the Company and you that this option shall not be an “Incentive
Stock Option” as that term is used in Section 422(b) of the Code and the
regulations thereunder.
Nothing
herein shall modify your status as an at-will employee of the Company or any
of
its Affiliates (as defined in the Plan). Further, nothing herein guarantees
you
employment for any specified period of time. This means that either you or
the
Company or any of its Affiliates may terminate your employment at any time
for
any reason, with or without cause, or for no reason. You recognize that, for
instance, you may terminate your employment or the Company or any of its
Affiliates may terminate your employment prior to the date on which your option
becomes vested or exercisable.
You
understand and agree that the existence of this option will not affect in any
way the right or power of the Company or its shareholders to make or authorize
any or all adjustments, recapitalizations, reorganizations, or other changes
in
the Company’s capital structure or its business, or any merger or consolidation
of the Company, or any issuance of bonds, debentures, preferred or other stocks
with preference ahead of or convertible into, or otherwise affecting the common
shares or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise.
Any
notice you give to the Company must be in writing and either hand-delivered
or
mailed to the office of the General Counsel of the Company. If mailed, it should
be addressed to the General Counsel of the Company at its then main
headquarters. Any notice given to you will be addressed to you at your address
as reflected on the personnel records of the Company. You and the Company may
change the address for notice by like notice to the other. Notice will be deemed
to have been duly delivered when hand-delivered or, if mailed, on the day such
notice is postmarked.
Any
dispute or disagreement between you and the Company with respect to any portion
of this option (excluding Attachment A hereto) or its validity, construction,
meaning, performance or your rights hereunder shall, unless the Company in
its
sole discretion determines otherwise, be settled by arbitration, at a location
designated by the Company, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association or its successor, as amended from time
to time. However, prior to submission to arbitration you will attempt to resolve
any disputes or disagreements with the Company over this option amicably and
informally, in good faith, for a period not to exceed two weeks. Thereafter,
the
dispute or disagreement will be submitted to arbitration. At any time prior
to a
decision from the arbitrator(s) being rendered, you and the Company may resolve
the dispute by settlement. You and the Company shall equally share the costs
charged by the American Arbitration Association or its successor, but you and
the Company shall otherwise be solely responsible for your own respective
counsel fees and expenses. The decision of the arbitrator(s) shall be made
in
writing, setting forth the award, the reasons for the decision and award and
shall be binding and conclusive on you and the Company. Further, neither you
nor
the Company shall appeal any such award. Judgment of a court of competent
jurisdiction may be entered upon the award and may be enforced as such in
accordance with the provisions of the award.
This
option shall be subject to the terms of the Plan in effect on the date this
option is granted, which terms are hereby incorporated herein by reference
and
made a part hereof. In the event of any conflict between the terms of this
option and the terms of the Plan in effect on the date of this option, the
terms
of the Plan shall govern. This option constitutes the entire understanding
between the Company and you with respect to the subject matter hereof and no
amendment, supplement or waiver of this option, in whole or in part, shall
be
binding upon the Company unless in writing and signed by the President of the
Company. This option and the performances of the parties hereunder shall be
construed in accordance with and governed by the laws of the State of
Delaware.
In
consideration of the grant to you of this option, you hereby agree to the
confidentiality and non-interference provisions set forth in Attachment A
hereto.
Please
sign the copy of this option and return it to the Company's Secretary, thereby
indicating your understanding of and agreement with its terms and conditions,
including
Attachment A hereto.
ICONIX
BRAND GROUP INC.
By:
_______________________________
ACKNOWLEDGMENT
I
hereby
acknowledge receipt of a copy of the Plan. I hereby represent that I have read
and understood the terms and conditions of the Plan and of this option,
including
Attachment A, hereto
.
I
hereby signify my understanding of, and my agreement with, the terms and
conditions of the Plan and of this option,
including
Attachment A, hereto
.
I agree
to accept as binding, conclusive, and final all decisions or interpretations
of
the Administrator concerning any questions arising under the Plan with respect
to this option. I accept this option in full satisfaction of any previous
written or verbal promise made to me by the Company or any of its Affiliates
with respect to option or stock grants.
|
Date: _____________
|
_____________________________
Signature
of Optionee
_____________________________
Print
Name
|
Attachment
A to Stock Option
Confidentiality
and Non-Interference
.
(a)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, during your employment with the Company or at any time
thereafter, except with the express prior written consent of the Company or
pursuant to the lawful order of any judicial or administrative agency of
government, directly or indirectly, disclose, communicate or divulge to any
individual or entity, or use for the benefit of any individual or entity, any
knowledge or information with respect to the conduct or details of the Company's
business which you, acting reasonably, believe or should believe to be of a
confidential nature and the disclosure of which not to be in the Company's
interest.
(b)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, during your employment with the Company, except with
the
express prior written consent of the Company, directly or indirectly, whether
as
employee, owner, partner, member, consultant, agent, director, officer,
shareholder or in any other capacity, engage in or assist any individual or
entity to engage in any act or action which you, acting reasonably, believe
or
should believe would be harmful or inimical to the interests of the
Company.
(c)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, for a period of two years after your employment with
the
Company ceases for any reason whatsoever (whether voluntary or not), except
with
the express prior written consent of the Company, directly or indirectly,
whether as employee, owner, partner, member, consultant, agent, director,
officer, shareholder or in any other capacity, for your own account or for
the
benefit of any individual or entity, (i) solicit any customer of the Company
for
business which would result in such customer terminating their relationship
with
the Company; or (ii) solicit or induce any individual or entity which is an
employee of the Company to leave the Company or to otherwise terminate their
relationship with the Company.
(d)
The
parties agree that any breach by you of any of the covenants or agreements
contained in this Attachment A will result in irreparable injury to the Company
for which money damages could not adequately compensate the Company and
therefore, in the event of any such breach, the Company shall be entitled (in
addition to any other rights and remedies which it may have at law or in equity)
to have an injunction issued by any competent court enjoining and restraining
you and/or any other individual or entity involved therein from continuing
such
breach. The existence of any claim or cause of action which you may have against
the Company or any other individual or entity shall not constitute a defense
or
bar to the enforcement of such covenants. If the Company is obliged to resort
to
the courts for the enforcement of any of the covenants or agreements contained
in this Attachment A, or if such covenants or agreements are otherwise the
subject of litigation between the parties, and the Company prevails in such
enforcement or litigation, then the term of such covenants and agreements shall
be extended for a period of time equal to the period of such breach, which
extension shall commence on the later of (a) the date on which the original
(unextended) term of such covenants and agreements is scheduled to terminate
or
(b) the date of the final court order (without further right of appeal)
enforcing such covenant or agreement.
(e)
If
any
portion of the covenants or agreements contained in this Attachment A, or the
application hereof, is construed to be invalid or unenforceable, the other
portions of such covenant(s) or agreement(s) or the application thereof shall
not be affected and shall be given full force and effect without regard to
the
invalid or enforceable portions to the fullest extent possible. If any covenant
or agreement in this Attachment A is held unenforceable because of the area
covered, the duration thereof, or the scope thereof, then the court making
such
determination shall have the power to reduce the area and/or duration and/or
limit the scope thereof, and the covenant or agreement shall then be enforceable
in its reduced form.
(f)
For
purposes of this Attachment A, the term "the Company" shall include the Company,
any successor to the Company and all present and future direct and indirect
subsidiaries and affiliates of the Company.
APPENDIX
III
NON-QUALIFIED
STOCK OPTION FOR DIRECTORS
AND
CONSULTANTS
To:
____________________________
Name
____________________________
Address
Date
of
Grant: _____________________
You
are
hereby granted an option, effective as of the date hereof, to purchase
__________ shares of common stock, $.001 par value ("Common Stock"), of Iconix
Brand Group, Inc., a Delaware corporation (the "Company"), at a price of $
per
share pursuant to the Company's 2006 Equity Incentive Plan (the
"Plan").
This
option shall terminate and is not exercisable after ten years from the date
of
its grant (the "Scheduled Termination Date"), except if terminated earlier
as
hereafter provided.
Your
option may first be exercised on and after one year from the date of grant,
but
not before that time. On and after one year and prior to two years from the
date
of grant, your option may be exercised for up to 20% of the total number of
shares subject to the option minus the number of shares previously purchased
by
exercise of the option (as adjusted for any change in the outstanding shares
of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances). Each succeeding year thereafter your
option may be exercised for up to an additional 20% of the total number of
shares subject to the option minus the number of shares previously purchased
by
exercise of the option (as adjusted for any change in the outstanding shares
of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances). Thus, this option is fully exercisable
on and after five years after the date of grant, except if terminated earlier
as
provided herein.
You
may
exercise your option by giving written notice to the Secretary of the Company
on
forms supplied by the Company at its then principal executive office,
accompanied by payment of the option price for the total number of shares you
specify that you wish to purchase. The payment may be in any of the following
forms: (a) cash, which may be evidenced by a check and includes cash
received from a stock brokerage firm in a so-called "cashless exercise";
(b) (unless prohibited by the Administrator) certificates representing
shares of Common Stock of the Company, which will be valued by the Secretary
of
the Company at the fair market value per share of the Company's Common Stock
(as
determined in accordance with the Plan) on the date of delivery of such
certificates to the Company, accompanied by an assignment of the stock to the
Company; or (c) (unless prohibited by the Administrator) any combination of
cash and Common Stock of the Company valued as provided in clause (b). The
use of the so-called "attestation procedure" to exercise a stock option may
be
permitted by the Administrator. Any assignment of stock shall be in a form
and
substance satisfactory to the Secretary of the Company, including guarantees
of
signature(s) and payment of all transfer taxes if the Secretary deems such
guarantees necessary or desirable.
Your
option will, to the extent not previously exercised by you, terminate three
months after the date on which your directorship or consultancy by the Company
or a Company subsidiary corporation is terminated other than by reason of (i)
Disability (as defined in the Plan) or death, in which case your option will
terminate one year from the date of termination of directorship or consultancy
due to Disability or death (but in no event later than the Scheduled Termination
Date) or (ii) for cause (as defined in the Plan) or your resignation, in which
case your option will terminate immediately and you will forfeit any right
to
exercise the option. After the date your directorship or consultancy is
terminated, as aforesaid (other than for the reasons stated in clause (ii),
you
may exercise this option only for the number of shares which you had a right
to
purchase and did not purchase on the date your directorship or consultancy
terminated. Provided you are willing to continue your directorship or
consultancy for the Company or a successor after a Change in Control at the
same
compensation you enjoyed immediately prior to such Change in Control, if your
directorship or consultancy is involuntarily terminated without cause after
a
Change in Control, you may exercise this option for the number of shares you
would have had a right to purchase on the date of an Acceleration Event. If
you
are employed by a Company subsidiary corporation, your directorship or
consultancy shall be deemed to have terminated on the date your employer ceases
to be a Company subsidiary corporation, unless you are on that date transferred
to the Company or another Company subsidiary corporation. Your directorship
or
consultancy shall not be deemed to have terminated if you are transferred from
the Company to a Company subsidiary corpora-tion, or vice versa, or from one
Company subsidiary corporation to another Company subsidiary
corporation.
If
you
die while employed by the Company or a Company subsidiary corporation, your
executor or administrator, as the case may be, may, at any time within one
year
after the date of your death (but in no event later than the Scheduled
Termination Date), exercise the option as to any shares which you had a right
to
purchase and did not purchase during your lifetime. If your directorship or
consultancy with the Company or a Company parent or subsidiary corporation
is
terminated by reason of your Disability, you or your legal guardian or custodian
may at any time within one year after the date of such termination (but in
no
event later than the Scheduled Termination Date), exercise the option as to
any
shares which you had a right to purchase and did not purchase prior to such
termination. Your executor, administrator, guardian or custodian must present
proof of his authority satisfactory to the Company prior to being allowed to
exercise this option.
In
the
event of any change in the outstanding shares of the Common Stock of the Company
by reason of a stock dividend, stock split, combination of shares,
recapitalization, merger, consolidation, transfer of assets, reorganization,
conversion or what the Administrator deems in its sole discretion to be similar
circumstances, the number and kind of shares subject to this option and the
option price of such shares shall be appropriately adjusted in a manner to
be
determined in the sole discretion of the Administrator, whose decision shall
be
final, binding and conclusive in the absence of clear and convincing evidence
of
bad faith.
In
the event of a liquidation or proposed liquidation of the Company, including
(but not limited to) a transfer of assets followed by a liquidation of the
Company, or in the event of a Change in Control (as defined in the Plan) or
proposed Change in Control, the Administrator shall have the right to accelerate
this option and/or require you to exercise this option upon thirty (30) days
prior written notice to you. If at the time such written notice is given this
option is not otherwise exercisable, the written notice will set forth your
right to exercise this option to the extent accelerated by the Administrator.
In
the event this option is not exercised by you within the thirty (30) day period
set forth in such written notice, this option shall terminate on the last day
of
such thirty (30) day period, notwithstanding anything to the contrary contained
in this option.
This
option is not transferable otherwise than by will or the laws of descent and
distribution, and is exercisable during your lifetime only by you, including,
for this purpose, your legal guardian or custodian in the event of Disability.
Until the option price has been paid in full pursuant to due exercise of this
option and the purchased shares are delivered to you, you do not have any rights
as a shareholder of the Company. The Company reserves the right not to deliver
to you the shares purchased by virtue of the exercise of this option during
any
period of time in which the Company deems, in its sole discretion, that such
delivery would violate a federal, state, local or securities exchange rule,
regulation or law.
Notwithstanding
anything to the contrary contained herein, this option is not exercisable until
all the following events occur and during the following periods of
time:
(a)
Until
the
Plan pursuant to which this option is granted is approved by the shareholders
of
the Company in the manner required by any applicable provision of the Code
(as
defined in the Plan) and the regulations thereunder and any applicable
securities exchange or listing rule or agreement;
(b)
Until
this option and the optioned shares are approved, registered and listed with
such federal, state, local and foreign regulatory bodies or agencies and
securities exchanges as the Company may deem necessary or desirable, or the
Company deems such option or optioned shares to be exempted therefrom;
(c)
During
any period of time in which the Company deems that the exercisability of this
option, the offer to sell the shares optioned hereunder, or the sale thereof,
may violate a federal, state, local or foreign law, rule or regulation, or
any
applicable securities exchange or listing rule or agreement, or may cause the
Company to be legally obligated to issue or sell more shares than the Company
is
legally entitled to issue or sell; or
(d)
Until
you
have paid or made suitable arrangements to pay (which may include payment
through the surrender of Common Stock, unless prohibited by the Administrator)
(i) all federal, state, local and foreign tax withholding required by the
Company in connection with the option exercise and (ii) the employee's portion
of other federal, state, local and foreign payroll and other taxes due in
connection with the option exercise.
The
following two paragraphs shall be applicable if, on the date of exercise of
this
option, no registration statement and current prospectus under the Securities
Act of 1933 covers the Common Stock to be purchased pursuant to such exercise,
and shall continue to be applicable for so long as such registration has not
occurred and such current prospectus is not available:
(a)
You
hereby agree, warrant and represent that you will acquire the Common Stock
to be
issued hereunder for your own account for investment purposes only, and not
with
a view to, or in connection with, any resale or other distribution of any of
such shares, except as hereafter permitted. You further agree that you will
not
at any time make any offer, sale, transfer, pledge or other disposition of
such
Common Stock to be issued hereunder without an effective registration statement
under the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Company to the effect
that the proposed transaction will be exempt from such registration. You agree
to execute such instruments, representations, acknowledgments and agreements
as
the Company may, in its sole discretion, deem advisable to avoid any violation
of federal, state, local or foreign law, rule or regulation, or any securities
exchange rule or listing agreement.
(b)
The
certificates for the Common Stock to be issued to you hereunder shall bear
the
following legend:
"The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or under applicable state securities laws.
The shares have been acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an effective registration
statement under the Securities Act of 1933, as amended, and under any applicable
state securities laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such registration."
The
foregoing legend shall be removed upon registration of the legended shares
under
the Securities Act of 1933, as amended, and under any applicable state laws
or
upon receipt of any opinion of counsel acceptable to the Company that said
registration is no longer required.
The
sole
purpose of the agreements, warranties, representations and legend set forth
in
the two immediately preceding paragraphs is to prevent violations of the
Securities Act of 1933, as amended, and any applicable state securities
laws.
It
is the
intention of the Company and you that this option shall not be an "Incentive
Stock Option" as that term is used in Section 422(b) of the Code and the
regulations thereunder.
Nothing
herein guarantees your term as a director of, or consultant to, the Company
or
any of its Affiliates (as defined in the Plan) for any specified period of
time.
This means that either you or the Company or any of its Affiliates may terminate
your directorship or consultancy at any time for any reason, with or without
cause, or for no reason. You recognize that, for instance, the Company or any
of
its Affiliates may terminate your directorship or consultancy with the Company
or any of its Affiliates prior to the date on which your option becomes vested
or exercisable.
You
understand and agree that the existence of this option will not affect in any
way the right or power of the Company or its shareholders to make or authorize
any or all adjustments, recapitalizations, reorganizations, or other changes
in
the Company’s capital structure or its business, or any merger or consolidation
of the Company, or any issuance of bonds, debentures, preferred or other stocks
with preference ahead of or convertible into, or otherwise affecting the common
shares or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise.
Any
notice you give to the Company must be in writing and either hand-delivered
or
mailed to the office of the General Counsel of the Company. If mailed, it should
be addressed to the General Counsel of the Company at its then main
headquarters. Any notice given to you will be addressed to you at your address
as reflected on the records of the Company. You and the Company may change
the
address for notice by like notice to the other. Notice will be deemed to have
been duly delivered when hand-delivered or, if mailed, on the day such notice
is
postmarked.
Any
dispute or disagreement between you and the Company with respect to any portion
of this option (excluding Attachment A hereto) or its validity, construction,
meaning, performance or your rights hereunder shall, unless the Company in
its
sole discretion determines otherwise, be settled by arbitration, at a location
designated by the Company, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association or its successor, as amended from time
to time. However, prior to submission to arbitration you will attempt to resolve
any disputes or disagreements with the Company over this option amicably and
informally, in good faith, for a period not to exceed two weeks. Thereafter,
the
dispute or disagreement will be submitted to arbitration. At any time prior
to a
decision from the arbitrator(s) being rendered, you and the Company may resolve
the dispute by settlement. You and the Company shall equally share the costs
charged by the American Arbitration Association or its successor, but you and
the Company shall otherwise be solely responsible for your own respective
counsel fees and expenses. The decision of the arbitrator(s) shall be made
in
writing, setting forth the award, the reasons for the decision and award and
shall be binding and conclusive on you and the Company. Further, neither you
nor
the Company shall appeal any such award. Judgment of a court of competent
jurisdiction may be entered upon the award and may be enforced as such in
accordance with the provisions of the award.
This
option shall be subject to the terms of the Plan in effect on the date this
option is granted, which terms are hereby incorporated herein by reference
and
made a part hereof. In the event of any conflict between the terms of this
option and the terms of the Plan in effect on the date of this option, the
terms
of the Plan shall govern. This option constitutes the entire understanding
between the Company and you with respect to the subject matter hereof and no
amendment, supplement or waiver of this option, in whole or in part, shall
be
binding upon the Company unless in writing and signed by the President of the
Company. This option and the performances of the parties hereunder shall be
construed in accordance with and governed by the laws of the State of
Delaware.
In
consideration of the grant to you of this option, you hereby agree to the
confidentiality and non-interference provisions set forth in Attachment A
hereto.
Please
sign the copy of this option and return it to the Company's Secretary, thereby
indicating your understanding of and agreement with its terms and conditions,
including
Attachment A hereto.
ICONIX
BRAND GROUP, INC.
By:
_____________________________
ACKNOWLEDGMENT
I
hereby
acknowledge receipt of a copy of the Plan. I hereby represent that I have read
and understood the terms and conditions of the Plan and of this option,
including
Attachment A, hereto
.
I
hereby signify my understanding of, and my agreement with, the terms and
conditions of the Plan and of this option,
including
Attachment A, hereto
.
I agree
to accept as binding, conclusive, and final all decisions or interpretations
of
the Administrator concerning any questions arising under the Plan with respect
to this option. I accept this option in full satisfaction of any previous
written or verbal promise made to me by the Company or any of its Affiliates
with respect to option or Stock grants.
|
Date: _____________
|
_____________________________
Signature
of Optionee
_____________________________
Print
Name
|
Attachment
A to Stock Option
Confidentiality
and Non-Interference
.
(a)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, during your term as a director of, or a consultant to,
the
Company or at any time thereafter, except with the express prior written consent
of the Company or pursuant to the lawful order of any judicial or administrative
agency of government, directly or indirectly, disclose, communicate or divulge
to any individual or entity, or use for the benefit of any individual or entity,
any knowledge or information with respect to the conduct or details of the
Company's business which you, acting reasonably, believe or should believe
to be
of a confidential nature and the disclosure of which not to be in the Company's
interest.
(b
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, during your term as a director of, or a consultant to,
the
Company, except with the express prior written consent of the Company, directly
or indirectly, whether as employee, owner, partner, member, consultant, agent,
director, officer, shareholder or in any other capacity, engage in or assist
any
individual or entity to engage in any act or action which you, acting
reasonably, believe or should believe would be harmful or inimical to the
interests of the Company.
(c)
You
covenant and agree that, in consideration of the grant to you of this stock
option, you will not, for a period of two years after your term as a director
of, or a consultant to, the Company ceases for any reason whatsoever (whether
voluntary or not), except with the express prior written consent of the Company,
directly or indirectly, whether as employee, owner, partner, member, consultant,
agent, director, officer, shareholder or in any other capacity, for your own
account or for the benefit of any individual or entity, (i) solicit any customer
of the Company for business which would result in such customer terminating
their relationship with the Company; or (ii) solicit or induce any individual
or
entity which is an employee of the Company to leave the Company or to otherwise
terminate their relationship with the Company.
(d)
The
parties agree that any breach by you of any of the covenants or agreements
contained in this Attachment A will result in irreparable injury to the Company
for which money damages could not adequately compensate the Company and
therefore, in the event of any such breach, the Company shall be entitled (in
addition to any other rights and remedies which it may have at law or in equity)
to have an injunction issued by any competent court enjoining and restraining
you and/or any other individual or entity involved therein from continuing
such
breach. The existence of any claim or cause of action which you may have against
the Company or any other individual or entity shall not constitute a defense
or
bar to the enforcement of such covenants. If the Company is obliged to resort
to
the courts for the enforcement of any of the covenants or agreements contained
in this Attachment A, or if such covenants or agreements are otherwise the
subject of litigation between the parties, and the Company prevails in such
enforcement or litigation, then the term of such covenants and agreements shall
be extended for a period of time equal to the period of such breach, which
extension shall commence on the later of (a) the date on which the original
(unextended) term of such covenants and agreements is scheduled to terminate
or
(b) the date of the final court order (without further right of appeal)
enforcing such covenant or agreement.
(e)
If
any
portion of the covenants or agreements contained in this Attachment A, or the
application hereof, is construed to be invalid or unenforceable, the other
portions of such covenant(s) or agreement(s) or the application thereof shall
not be affected and shall be given full force and effect without regard to
the
invalid or enforceable portions to the fullest extent possible. If any covenant
or agreement in this Attachment A is held unenforceable because of the area
covered, the duration thereof, or the scope thereof, then the court making
such
determination shall have the power to reduce the area and/or duration and/or
limit the scope thereof, and the covenant or agreement shall then be enforceable
in its reduced form.
(f)
For
purposes of this Attachment A, the term "the Company" shall include the Company,
any successor to the Company and all present and future direct and indirect
subsidiaries and affiliates of the Company.