EXHIBIT 4.2
NON-QUALIFIED STOCK OPTION AGREEMENT
PRECIS SMART CARD SYSTEMS, INC.
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is made
and entered into this 27th day of August, 2001, by and between Precis, Inc. (the
"Company") and [NAME OF DIRECTOR] ("Optionee").
WHEREAS, the Board of Directors of the Company (the "Board") on August
27, 2001, desires to grant to Optionee stock options (the "Options") that are
not qualified under Section 422 of the Internal Revenue Code of 1986, as
amended, upon the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
representations herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Optionee hereby agree as follows:
1. DEFINITIONS. The capitalized terms used herein shall have the
following meanings:
1.1 BOARD. The Board of Directors of the Company.
1.2 COMMON STOCK. The common stock, $.01 par value, of the Company.
1.3 EFFECTIVE DATE. The date on which this Agreement becomes effective
or, in absence of a specific effective date, the date of execution of
this Agreement.
1.4 FAIR MARKET VALUE. The fair market value of the Common Stock on any
particular day determined as follows: (i) if the Common Stock is listed
or admitted for trading on any national securities exchange or the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System, the last sale price, or if no
sale occurred, the mean between the closing high bid and low asked
quotations, for such day of the Stock on the principal securities
exchange on which shares of Stock are listed; (ii) if Stock is not
traded on any national securities exchange but is quoted on the
National Association of Securities Dealers, Inc., Automated Quotation
System or any similar system of automated dissemination of quotations
or securities prices in common use, the mean between the closing high
bid and low asked quotations for such day of the Stock on such system;
(iii) if neither clause (i) nor (ii) is applicable, the mean between
the high bid and low asked quotations for the Stock as reported by the
National Daily Quotation Bureau, Incorporated if at least two
securities dealers have inserted both bid and asked quotations for
shares of the Stock on at least five (5) of the ten (10) preceding
days; (iv) in lieu of the above, if actual transactions in the shares
of Stock are reported on a consolidated transaction reporting system,
the last sale price of the shares of Stock on such system; or (v) if
none of the conditions set forth above is met, the fair market value of
shares of Stock as determined by the Board. Provided, for purposes of
determining "fair market value" of the Common Stock, such value shall
be determined without regard to any restriction other than a
restriction which will never lapse.
1.5 IMMEDIATE FAMILY. Any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and
shall include adoptive relationships.
1.6 MATURE COMMON STOCK. Common Stock of the Company which has been
held by the Optionee for not less than six months and during such
period has not been subject to any type of forfeiture or restriction on
transfer (other than restrictions under applicable securities laws) on
the date of exercise of the Options granted hereunder and is delivered
in payment, in whole or in part, of the aggregate Option Price of
Options exercised pursuant to this Agreement.
1.7 OPTIONS. The options granted to the Optionee pursuant to this
Agreement.
1.8 OPTION PRICE. The price at which shares of Common Stock may be
purchased by the Optionee pursuant to exercise of the Options granted
hereunder.
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1.9 PERSONAL REPRESENTATIVE. The person designated in the will and/or
such other documents deemed acceptable to the Board as the executor or
administrator of the estate of the Optionee.
2. OPTION GRANT. The Company hereby grants the Optionee, on the
Effective Date, the Options to purchase [NUMBER OF SHARES] shares of Common
Stock to be issued upon exercise thereof as fully paid and nonassessable at any
time during the period commencing six months following the Effective Date
through February 27, 2006 at an Option Price of $3.55 per share.
3. TERMINATION OF OPTION. The Options or any unexercised portion
thereof shall terminate on expiration of the period during which the Options or
any portion thereof may be exercised.
4. MANNER OF EXERCISE. The Options may be exercised in whole or in
part, at any time after such Options or any portion thereof becomes exercisable,
by giving written notice to the Secretary of the Company, or other officer
designated by the Board, at the Company's main office. Such notice shall state
the number of shares of Common Stock with respect to which the Options or any
portion thereof is being exercised and shall specify a date, not less than five
nor more than ten days after the date of such notice, as the date on which the
shares will be taken up and payment made therefor in cash, if applicable, at the
principal offices of the Company. If any law or regulation requires the Company
to take any action with respect to the shares specified in such notice, then the
date for delivery of such shares against payment therefor shall be extended for
the period necessary to take such action. In the event of any failure to take up
and pay for the number of shares specified in such notice on the date set forth
therein, subject to such date being extended as provided above, the exercise of
the Options shall terminate as though not exercised with respect to such number
of shares, and shall continue with the remaining shares covered by this
Agreement and not yet acquired by exercise of the Options or any portion
thereof.
5. PAYMENT OF PURCHASE PRICE. Payment of the Option Price for shares
of Common Stock purchased pursuant to this Agreement shall be made by (i)
payment in cash or check made payable to the Company or (ii) delivery to the
Company of shares of Mature Common Stock, or (iii) a combination of the
foregoing. If Optionee elects to pay for all or part of the shares of Common
Stock purchasable upon exercise of the Options by delivery of Mature Common
Stock, a share certificate or certificates, together with a duly executed stock
power authorizing the transfer of such shares to the Company, shall be
delivered to the Company with the notice of exercise. Should the number of such
shares of Mature Common Stock delivered for credit and payment against the
aggregate Option Price of the exercised Options have a Fair Market Value less
than the full purchase price, Optionee shall pay in cash or by check the
difference between the Fair Market Value of the Common Stock to be conveyed to
the Company and the full aggregate Option Price. In the event the share
certificate delivered is for a number of shares of Mature Common Stock in
excess of that number to be conveyed to the Company for credit against the
aggregate Option Price, the Company will issue to the Optionee a new share
certificate representing the number of shares in excess of the nearest whole
number of shares having a Fair Market Value not in excess of the amount
required to pay the full aggregate Option Price. No fractional shares of Common
Stock shall be accepted in payment, or reissued, by the Company under the
provisions of this Section.
6. DELIVERY OF SHARES. No shares of Common Stock shall be delivered
upon exercise of the Options or any portion thereof until (i) the purchase price
shall have been paid in full in the manner provided herein, (ii) applicable
taxes, if any, required to be withheld have been paid or withheld in full, (iii)
approval of any government authority required in connection with the Options, or
the issuance of the Common Stock hereunder, has been received by the Company,
and (iv) if required by the Board, Optionee has delivered to the Board evidence
satisfactory to the Company, that any action or actions required of the Optionee
under Section 13 hereof have been taken.
7. NO EMPLOYMENT RIGHTS. Nothing in this Agreement shall confer upon
the Optionee any rights to become or be an employee or consultant of the Company
or of any of its subsidiaries, or interfere in any way with the right of the
Company to terminate the Optionee as a director of the Company at any time.
8. SHAREHOLDER RIGHTS. Optionee shall not have a right as a
shareholder with respect to any shares of Common Stock subject to the Options
prior to the purchase of such shares of Common Stock by exercise of the Options.
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9. NON-TRANSFERABILITY OF OPTION. Except as otherwise herein
provided, the Options shall not be transferable other than (i) by will or the
laws of descent and distribution, (ii) to members of the Immediate Family of
Optionee, or (iii) an individual retirement account maintained for the benefit
of Optionee. Except as provided hereinabove, the Options may not be assigned,
transferred, 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, hypothecation, or other
disposition of the Options contrary to the provisions hereof shall be null and
void and without effect.
10. EXERCISE BY THE PERSONAL REPRESENTATIVE OF OPTIONEE. In the event
of the death or disability of the Optionee during any period that the Options or
any portion thereof is exercisable by the Optionee, the Personal Representative
of the Optionee may exercise the Options if otherwise exercisable.
11. RIGHT TO EXERCISE UPON COMPANY CEASING TO EXIST. In the event of
the dissolution or liquidation of the Company or any merger, consolidation or
combination in which the Company is not the surviving corporation, the Optionee
shall have the right immediately prior to such dissolution, liquidation, merger,
consolidation or combination, as the case may be, to exercise, in whole or in
part, the then remaining unexercised portion of the Options whether or not then
exercisable, but limited to that number of shares of Common Stock that can be
acquired without causing the Optionee to have an "excess parachute payment" as
determined under Section 280G of the Code determined by taking into account all
of the Optionee's "parachute payments" determined under Section 280G of the
Code. Provided, the foregoing notwithstanding, after the Optionee has been
afforded the opportunity to exercise the then exercisable Options or any portion
thereof as provided herein, and to the extent the Options or any portion thereof
is not timely exercised as provided herein, then, the terms and provisions of
this Agreement will thereafter continue in effect, and the Optionee will be
entitled to exercise any such remaining and unexercised portion of the Options
in accordance with the terms and provisions of this Agreement as such Options or
portion thereafter becomes exercisable. Provided further, for the purposes of
this provision, if any merger, consolidation or combination occurs in which the
Company is not the surviving corporation and is the result of a mere change in
the identity, form, or place of organization of the Company accomplished in
accordance with Section 368(a)(1)(F) of the Code, such event shall not cause an
acceleration of the exercisability of the Options or any portion thereof granted
hereunder.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The aggregate number
of shares of Common Stock under the Options granted hereunder, the Option Price
and the total number of shares of Common Stock which may be purchased by the
Optionee upon exercise of the Options or any portion thereof shall be
appropriately adjusted by the Board to reflect any recapitalization, stock
split, merger, consolidation, reorganization, combination, liquidation, stock
dividend or similar transaction involving the Company except that a dissolution
or liquidation of the Company or a merger or consolidation in which the Company
is not the surviving or the resulting corporation, shall cause the Options
granted hereunder to terminate upon the effective date of such dissolution,
liquidation, merger or consolidation. Provided, that for the purposes of
hereof, if any merger, consolidation or combination occurs in which the Company
is not the surviving corporation and is the result of a mere change in the
identity, form or place of organization of the Company accomplished in
accordance with Section 368(a)(1)(F) of the Code, such event will not cause a
termination.
13. TRANSFERABILITY OF SHARES OF COMMON STOCK. In the event a
registration statement with respect to the issuance of shares of Common Stock
to the Optionee upon the exercise of the Options or any portion thereof is not
in effect at the time of such issuance of shares by the Company, or the
Optionee at the time of the proposed transfer of the Common Stock, Optionee
shall not offer, sell, hypothecate, transfer or otherwise dispose of any of the
shares of Common Stock issued pursuant to the exercise of the Options or any
portion thereof unless either (i) a registration statement with respect to such
shares of Common Stock is then in effect under the Securities Act of 1933, as
amended (the "Act"), and any applicable state securities laws, and such offer,
sale, transfer or other disposition is accompanied by a prospectus relating to
such registration statement and meeting the requirements of Section 10 of the
Act; or (ii) counsel satisfactory to the Company renders a reasonable opinion
in writing and addressed to the Company and its counsel, that, in the opinion
of counsel, such proposed offer, sale, transfer or other disposition of such
shares of Common Stock is exempt from the provisions of Section 5 of the Act
and the applicable state securities laws in view of the circumstances of such
proposed offer, sale, transfer or other
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disposition. The Company shall file within six months of the Effective Date, a
registration statement on the appropriate form pursuant to the Act and any
applicable state securities laws covering the shares of Common Stock issuable
upon exercise of the Options, and shall maintain the effectiveness of such
registration statement during the term of the Options.
14. FEDERAL AND STATE TAXES. Upon exercise of the Options, in whole or
in part, the Optionee may incur certain liabilities for federal, state or local
taxes and the Company may be required to withhold such taxes for payment to the
applicable taxing authorities. Upon determination by the Company of the amount
of taxes required to be withheld, if any, with respect to the shares to be
issued pursuant to the Options or any portion thereof, Optionee shall either pay
to the Company in cash or by check an amount equal to the taxes required to be
paid on such transaction or Optionee shall authorize the Company to withhold
from amounts owing by the Company to Optionee an amount equal to the amount of
federal, state or local taxes required to be withheld with respect to the shares
to be issued upon exercise of the Options or the portion thereof.
Authorization of Optionee to the Company to withhold taxes pursuant to
this Section 14 shall be in such form and content deemed acceptable to the
Company. Payment or authorization shall be completed prior to the delivery of
any shares of Common Stock pursuant to this Agreement. An authorization to
withhold taxes pursuant to this Section 14 shall be irrevocable unless and until
the tax liability of Optionee has been fully paid.
15. BINDING EFFECT. This Stock Option Agreement shall be binding upon
and shall inure to the benefit of any successor in interest of the Company, and,
to the extent herein provided and as provided in the Plan, shall be binding upon
and inure to the benefit of Optionee's Personal Representative, heirs and
successors in interest.
16. AMENDMENTS. This Agreement may be amended only by a written
agreement executed by the Company and the Optionee if the amendment will cancel,
reduce or otherwise alter the Options granted hereunder, and in such event, any
such amendment shall only be made upon the mutual consent of the parties hereto,
which consent (of either party) may be withheld for any reason.
THIS AGREEMENT is executed on the date first above written.
"Company" PRECIS SMART CARD SYSTEMS, INC.
By:
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Xxxx X. Xxxxxx, Chief Executive Officer
"Optionee"
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[NAME OF DIRECTOR]
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