EXHIBIT 4.6
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT ("Agreement"), made as of this
1st day of July, 1997, by and between Xxxxxx Xxxxxx (the "Participant"), and
Precis Smart Card Systems, Inc. (the "Company"):
WITNESSETH:
WHEREAS, the Participant is an employee of the Company, currently
serving as senior project/marketing manager, and it is important to the Company
that Participant be encouraged to remain an employee of the Company; and
WHEREAS, in recognition of such facts, the Company desires to provide
to the Participant an opportunity to purchase shares of the common stock of the
Company, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for good and valuable consideration, the Participant and the
Company hereby agree as follows:
1. GRANT OF STOCK 0PTION. The Company hereby grants to the Participant
a stock option (the "Stock Option") to purchase all or any part of an aggregate
of Two Thousand Five Hundred (2,500) shares of its Common Stock, par value $.01,
(the "Stock") as set forth below, under and subject to the terms and conditions
of this Option Agreement. The purchase price for each share to be purchased
hereunder shall be Two Dollars and No/100 ($2.00) (the "Option Price").
2. TIMES OF EXERCISE. After, and only after, the conditions of Section
8 hereof have been satisfied, the Participant shall be eligible to exercise that
portion of her Stock Option pursuant to the schedule set forth hereinafter. If
Participant remains an employee of the Company at all times prior to any of the
"Exercise Dates" specified hereafter, then Participant shall be entitled,
subject to the applicable provisions of this Option Agreement having been
satisfied, to exercise on or after the applicable Exercise Date, on a cumulative
basis, here Stock Option to acquire the number of shares of stock determined by
multiplying the aggregate number of shares set forth in the foregoing Section 1
by the designated percentage set forth hereafter.
Percent of Stock
Exercise Dates Option Exercisable
-------------- ------------------
July 1, 1997 50%
January 1, 1998 100%
3. TERM OF STOCK OPTION. The Stock Option shall be exercisable no more
than ten (10) years from the date hereof (the "Option Period").
4. NONTRANSFERABILITY OF STOCK OPTIONS'. Except as otherwise herein
provided, any Stock Option granted shall not be transferable otherwise than by
will or the laws of descent and distribution, and the Stock Option may be
exercised only by her. More particularly (but without limiting the generality of
the foregoing), the Stock Option may be assigned, transferred (except as
provided above), pledged or hypothecated in any way, shall not be assignable by
operation of law and shall not be subject to execution, attachment, or similar
process. Any attempted assignment, transfer, pledge, or hypothecation or other
disposition of the Stock Option contrary to the provisions hereof shall be null
and void and without effect.
5. SPECIAL RULES WITH RESPECT TO STOCK OPTIONS. With respect to the
Stock Option granted hereunder, the following special rules shall apply:
20
(a) ASSUMPTION OF OUTSTANDING STOCK OPTIONS. To the extent
permitted by the applicable provisions of the Internal Revenue Code of 1986 (the
"Code"), as amended, any successor to the Company succeeding to, or assigned the
business of, the Company as the result of or in connection with a corporate
merger, consolidation, combination, reorganization or liquidation transaction
shall assume Stock Options outstanding under this Option Agreement or issue new
Stock Options in place of such outstanding Stock Options. Provided, such
assumption of outstanding Stock Options is to be made on a fair and equivalent
basis in accordance with the applicable provisions of Section 424(a) of the
Code; provided, further, in no event will such assumption result in a
modification of any Stock Option as defined in Section 424(h) of the Code.
(b) ADJUSTMENTS UNDER CHANGES IN CAPITALIZATION. The aggregate
number of shares of Stock under Stock Options granted under this Option
Agreement granted under this Option Agreement, the Option Price and the total
number of shares of Stock which may be purchased by a Participant on exercise of
the Stock Option shall be appropriately adjusted or modified by the Board of
Directors to reflect any recapitalization, stock split, merger, consolidation,
reorganization, combination, liquidation, stock dividend or similar transaction
involving the Company. Provided, any such adjustment shall be made in such a
manner as to not constitute a modification as defined in Section 424(h) of the
Code.
6. METHOD OF EXERCISING STOCK OPTION.
(a) PROCEDURES FOR EXERCISE. The manner of exercising the
Stock Option herein granted shall be by written notice to the Secretary of the
Company prior to the date the Stock Option, or part thereof, is to be exercised,
and in any event prior to the expiration of the Option Period. Such notice shall
state the election to exercise the Stock Option and the number of shares of
Stock with respect to that portion of the Stock Option being exercised, and
shall be signed by the person or persons so exercising the Stock Option.
(b) FORM OF PAYMENT. Payment for shares of Stock purchased
under this Option Agreement shall be made in full and in cash or by check, Stock
of the Company or a combination thereof, at the time of exercise of the Stock
Options as a condition thereof, and no loan or advance shall be made by the
Company for the purpose of financing, in whole or in part, the purchase of
Stock. In the event that common stock of the Company is utilized as
consideration for the purchase of Stock upon the exercise of a Stock Option,
then, such common stock shall be valued at "fair market value." In addition to
the foregoing procedure which may be available for the exercise of any Stock
Option, the Participant may deliver to the Company a notice of exercise
including an irrevocable instruction to the Company to deliver the stock
certificate issued in the name of the Participant representing the shares
subject to a Stock Option to a broker authorized to trade in the common stock of
the Company. Upon receipt of such notice, the Company will acknowledge receipt
of the executed notice of exercise and forward this notice to the broker. Upon
receipt of the copy of the notice which has been acknowledge by the Company, and
without waiting for issuance of the actual stock certificate with respect to the
exercise of the Option, the broker may sell the Stock or any portion thereof.
Upon receipt of the notice to exercise from the Company, the broker will deliver
directly to the Company a portion of the sales proceeds to cover the Option
Price and any withholding taxes, if any. Further, the broker may also facilitate
a loan to the Participant upon receipt of the notice of exercise in advance of
the issuance of the actual stock certificate as an alternative means of
financing and facilitating the exercise of any Stock Option. For all purposes of
effecting the exercise of a Stock Option, the date on which the Participant
gives the notice of exercise to the Company will be the date he becomes
contractually to take and pay for the shares of Stock underlying the Stock
Option. The Committee may also adopt such other procedures which it desires for
the payment of the purchase price upon the exercise of a Stock Option which are
not inconsistent with the applicable provisions of the Code which relate to
Stock Options.
(c) PAYMENT OF WITHHOLDING TAXES. No exercise of any Stock
Option shall be permitted nor shall any Stock be issued to the Participant until
the Company receives full payment for the Stock purchased which shall include
any required state and federal withholding taxes. Further, upon the exercise of
any Stock Option, the Participant may direct the Company to retain from the
shares of Stock to be issued upon exercise of the Stock Option that number of
initial shares of Stock (based on fair market value) that would be necessary to
satisfy the requirements for withholding any amounts of taxes due upon the
exercise of such Stock Option.
7. ACCELERATION OF STOCK OPTIONS UPON CHANGE OF CONTROL. In the event
that a Change of Control or acquisition (as defined herein) has occurred with
respect to the Company, any and all Stock
21
Options become automatically fully vested and immediately exercisable with such
acceleration to occur without the requirement of any further act by either the
company or the Participant. For purposes of this Section 7, the term "Change of
Control" shall mean the acquisition in a transaction or a series of transaction
by any person, entity or "group," within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"), of
beneficial ownership, of 50% or more of either the then outstanding shares of
common stock or the combined voting power of the Company's then outstanding
voting securities; provided, however, that any acquisition of beneficial
ownership of common stock or voting securities of the Company which is less than
50% of either the then outstanding shares of common stock or combined voting
power of the Company's then outstanding voting securities shall be deemed to be
a "Change of Control" for the purposes of this Agreement if a majority of the
incumbent members of the Board of Directors immediately prior to the Change of
Control Determines that such acquisition has caused a Change of Control to
occur;
8. SECURITIES LAW RESTRICTIONS. Stock Options shall be exercised and
Stock issued only upon compliance with the Securities Act of 1933, as amended
(the "Act"), and any other applicable securities law, or pursuant to an
exemption therefrom.
9. SHAREHOLDER RIGHTS. The Participant shall have no rights as a
shareholder with respect to any shares of Stock subject to a Stock Option prior
to the purchase of such shares of Stock by exercise of the Stock Option.
10. NO PROMISE OF CONTINUED EMPLOYMENT. This Agreement does not create
a promise by the Company of continued employment of the Participant. The
Participant acknowledges that her employment by the Company is "at will."
11. NOTICES. All notices or other communications relating to the Plan
and this Option Agreement as it relates to the Participant shall be in writing
and shall be mailed (U.S. Mail) by the Company to the Participant at the then
current address as maintained by the Company or such other address as the
Participant may advise the Company in writing.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
duly executed by its officers thereunto duly authorized, and the Participant has
hereunto set her hand, all on the day and year first above written.
PRECIS SMART CARD SYSTEMS, INC.,
an Oklahoma corporation
By: /s/ XXXXX XXXX
Xxxxx Xxxx, President
"COMPANY"
/s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx, an individual
"PARTICIPANT
22
