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EXHIBIT 99.2
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement, entered into as of the 15th
day of December, 1997 ("Effective Date"), between Credit Store, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Corporation") with its principal place of business at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000 and ___________, residing at
____________________ (the "Optionee").
1. The Corporation, subject to the terms and conditions hereinafter set
forth, grants as of the date hereof to the Optionee a nonqualified stock option
to purchase an aggregate of ____________________________ (_________) shares of
common stock, $.001 par value of the Corporation ("Common Stock") at an exercise
price of $_______ per share. Shares of Common Stock to be issued upon the
exercise of this option may, at the election of the Corporation, be either
authorized and unissued shares or shares previously issued and reacquired by the
Corporation. This option shall not be treated as an "incentive stock option"
under Section 422 of the Internal Revenue Code of 1986, as amended, (the
"Code").
2. This option shall be exercisable as to the total number of shares
subject to this option, in whole or in part, on or after the date hereof and
shall expire at the close of business on December 15, 2002 (the "Expiration
Date"). In the event the Expiration Date falls during a period in which an
underwriter has prohibited sale of shares issuable upon exercise of this Option
as provided in section 10(a), then the Expiration Date shall be extended to the
45th day following the end of the period in which such sales are prohibited.
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3. This option shall be exercised by the delivery by the Optionee (or
his personal representative, as the case may be) of written Notice of Exercise
in the form annexed hereto to the Corporation at its principal office, presently
located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000, Attention:
Compensation/Stock Option Committee, stating that the Optionee is exercising
this non-qualified stock option, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor (a)
in cash or by certified check, (b) with previously acquired shares of Common
Stock which have been held by the Optionee for at least six months having a Fair
Market Value on the exercise date equal to the aggregate exercise price, or (c)
a combination of the foregoing. For this purpose, the "Fair Market Value" of a
share of Common Stock on any day shall mean (a) if the principal market for the
Common Stock is a national securities exchange, the average of the highest and
lowest sales prices per share of the Common Stock on such day as reported by
such exchange or on a composite tape reflecting transactions on such exchange,
(b) if the principal market for the Common Stock is not a national securities
exchange and the Common Stock is quoted on the Nasdaq Stock Market ("Nasdaq"),
and (i) if actual sales price information is available with respect to the
Common Stock, the average of the highest and lowest sales prices per share of
the Common Stock on such day on Nasdaq, or (ii) if such information is not
available, the average between the highest bid and the lowest asked prices per
share of Common Stock on such day on Nasdaq, or (c) if the principal market for
the Common Stock is not a national securities exchange of the Common Stock is
not quoted on Nasdaq, the average of the highest bid and lowest asked prices per
share for the Common Stock on such day as reported on the Nasdaq OTC Bulletin
Board Service or by National Quotation Bureau, Incorporated or a comparable
service; provided
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that if clauses (a), (b) and (c) of this paragraph are all inapplicable, or if
no trades have been made or no quotes are available for such day, the fair
market value of a share of Common Stock shall be determined by the Board of
Directors of the Corporation. Notwithstanding the foregoing, the Corporation
may, in its sole discretion, permit payment of the exercise price of this option
by delivery by the Optionee of a properly executed Notice of Exercise, together
with a copy of his irrevocable instructions to a broker designated by the
Corporation to deliver promptly to the Corporation the amount of sale proceeds
sufficient to pay such exercise price. In connection therewith, the Corporation
may enter into agreements for coordinated procedures with one or more brokerage
firms.
4. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current at the time of exercise or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Corporation that,
unless a Registration Statement is effective and current at the time of exercise
of this option, the shares of Common Stock to be issued upon the exercise of
this option will be acquired by the Optionee for his own account, for investment
only and not with a view to the resale or distribution thereof. In any event,
the Optionee shall notify the Corporation of any proposed resale of the shares
of Common Stock issued to him upon exercise of this option. Any resale or
distribution of such shares of Common Stock by him may be made only pursuant to
(i) a Registration Statement under the Securities Act which is effective and
current with respect to the shares of Common Stock being sold, (ii) a specific
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exemption from the registration requirements of the Securities Act, but in
claiming such exemption, the Optionee shall prior to any offer of sale or sale
of such shares of Common Stock provide the Corporation with a favorable written
opinion of counsel satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, as to the applicability of such exemption to
the proposed sale or distribution. Such representations and warranties shall
also be deemed to be made by the Optionee upon each exercise of this option.
Nothing herein shall be construed as requiring the Corporation to register
shares subject to this option under the Securities Act.
5. Within six months of the date at which the Corporation shall have
become a registered company pursuant to section 12g of the Securities Exchange
Act of 1934, and shall have satisfied all other requirements for filing of a
Form S-8 registration statement with the Securities and Exchange Commission, the
Corporation shall make its best efforts to register the shares of Common Stock
that are subject to this Option by filing a Form S-8 with respect to such shares
with the Securities and Exchange Commission.
6. Nothing herein shall confer upon the Optionee any right to continue
as an employee of the Corporation, its parent of its subsidiaries or interfere
in any way with any right of the Corporation, its parent or any subsidiary to
terminate such relationship at any time for any reason without liability to the
Corporation, its parent or subsidiaries. Neither the Optionee nor his legal
representatives shall have any of the rights or privileges of a shareholder of
the Corporation in respect of any of the shares issuable upon the exercise of
this option, unless and until certificates representing such shares shall have
been issued and delivered; provided, however, that until such certificates are
issued, the Optionee shall be
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treated as owning any previously acquired shares of Common Stock used to
exercise such option.
7. The Corporation may withhold cash and/or shares of Common Stock in
the amount, if any, necessary to satisfy its obligations to withhold taxes or
other amounts by reason of the grant, exercise or disposition of the option or
the shares of Common Stock underlying the option, or may require the Optionee to
pay the Corporation such amount. The Optionee agrees to pay any such amount to
the Corporation in cash upon demand.
8. The Corporation may affix appropriate legends upon the certificates
for shares and may issue such "stop transfer" instructions to its transfer agent
in respect of such shares as it determines, in its discretion, to be necessary
or appropriate to (a) prevent a violation of, or to perfect an exemption from,
the registration requirements of the Securities Act, or (b) implement the
provisions of any agreement between the Corporation and the Optionee with
respect to such shares.
9. The Optionee represents and agrees that he will comply with all
applicable laws relating to the grant and exercise of this option and the
disposition of the shares of Common Stock acquired upon exercise of this option,
including without limitation, Federal and state securities and "blue sky" laws.
10. (a) The Optionee agrees that the underwriter for a public offering
of the Corporation's shares of Common Stock, or the Corporation, shall each have
the right, in its sole discretion, to prohibit the sale, without prior written
consent, of all or any portion of the shares subject to this option for a period
not to exceed 12 months from the closing of a public offering of the
Corporation's securities. The provisions of this paragraph 10 shall apply to
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any public offering of the Corporation's securities, regardless of whether any
shares of the Optionee are included in or registered concurrently with such
offering.
(b) Any sales of shares received by Optionee upon exercise of the
option may be sold only in compliance with applicable laws respecting the sale
of shares of securities of the Corporation by officers, directors and control
persons, and, without regard to the applicability of such limitations, only in
amounts that do not exceed the volume limitations on sales of securities by an
affiliate of an issuer imposed by Rule 144(e) promulgated under the Securities
Act of 1933.
11. This option is not transferable by the Optionee other than (a) upon
his death by will or the laws of descent and distribution or (b) to Optionee's
conservator, or (c) to a person or entity that, directly or indirectly,
controls, is controlled by or is under common control with, the Corporation.
Neither this option nor any of the rights and privileges conferred hereby shall,
except as specifically permitted in the immediately preceding sentence, be
transferred, assigned, pledged (as collateral for a loan, or as security for the
performance of an obligation, or for any other purpose), or hypothecated in any
way (whether voluntarily, by operation of law or otherwise) or be subject to
execution, attachment, or similar process. Any attempted transfer, assignment,
pledge (as collateral for a loan or as security for the performance of any
obligation, or for any other purpose), hypothecation, execution, attachment or
similar process, which is not specifically permitted hereunder, shall be null
and void and of no force or effect.
12. In the event that, prior to the issuance by the Corporation of all
the shares pursuant to this Option, there shall be any change in the outstanding
Common Stock of the Corporation by reason of a stock dividend, stock split,
spin-off, stock combination,
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recapitalization, merger in which the Corporation is the surviving corporation
or the like, the remaining number of shares still subject to this option and the
exercise price therefore shall be proportionally adjusted by the Board of
Directors of the Corporation to reflect such change. Such adjustment may provide
for the elimination of fractional shares which might otherwise be subject to
options, without payment therefor. Except for a manifest and material error, the
determination of the Board of Directors with respect thereto shall be conclusive
and binding on the parties. In the event of a consolidation, or a merger in
which the Corporation is not the surviving corporation or a sale of all or
substantially all of the Corporation's assets, then, in each such case the
Optionee, upon exercise of this option at any time after the consummation of
such consolidation, merger or sale, shall be entitled to receive the stock or
other securities or property to which the Optionee would have been entitled upon
such consummation if the Optionee had exercised this option immediately prior
thereto; and in each such case, the terms of this option shall be applicable to
the shares of stock or other securities or property receivable upon exercise of
this option after such consummation.
13. The invalidity, unenforceability or illegality of any provision
herein shall not affect the validity, enforceability or legality of any other
provision.
14. This Agreement shall be binding upon and inure to the benefit of any
successor or assign of the Corporation and to any heir, distributee, executor,
administrator or legal representative entitled by law to the Optionee's rights
hereunder. This Agreement may not be amended except in writing signed by the
parties.
15. Whenever notice is required to be given under the terms of this
Agreement, such notice shall be in writing and shall be deemed delivered:
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(a) If to the Corporation, upon receipt by the Corporation, at the
Corporation's address set forth above, Attention: Compensation/Stock Option
Committee, or such other address as the Corporation may designate by notice to
the Optionee, effective upon receipt of such notice by the Optionee.
(b) If to the Optionee, as of the day it is personally delivered, or
5 days after mailing, by registered or certified mail, return receipt requested,
postage prepaid, at the Optionee's address set forth above, or such other
address as the Optionee may designate by notice to the Corporation, effective
upon receipt of such notice by the Corporation.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to conflict of law provisions.
17. This Agreement constitutes the entire understanding between the
parties with respect to the subject matter hereof and supersedes any prior
agreements with respect thereto.
18. The Corporation shall pay all issuance taxes with respect to the
shares of Common Stock upon exercise of this option, as well as all expenses
incurred by the Corporation in connection therewith.
19. This option shall not be construed or interpreted with any
presumption against the Corporation by reason of the Corporation causing this
Agreement to be drafted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above set forth.
CREDIT STORE, INC.
By
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Name:
Title:
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