Exhibit 10.2
MONEY CENTERS OF AMERICA, INC.
AMENDED AND RESTATED 2003 STOCK INCENTIVE PLAN
AWARD AGREEMENT FOR NON-QUALIFIED STOCK OPTION
------------------------------------------------
This STOCK OPTION GRANT, dated as of June 14, 2005 (the "Date of Grant"),
is delivered by Money Centers of America, Inc. (the "Company") to Xxxxx X. Xxxxx
(the "Participant").
RECITALS
----------
The Money Centers of America, Inc. Amended and Restated 2003 Stock
Incentive Plan (the "Plan") provides for the grant of options to purchase common
stock of the Company ("Common Stock"). The Board of Directors of the Company,
acting as the committee responsible for the Plan ("Committee") has decided to
make a grant of options to purchase Common Stock of the Company pursuant to the
terms of this Agreement. A copy of the Plan, as in effect on the date hereof, is
attached.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound, hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth in this
Agreement and in the Plan, the Company hereby grants to the Participant a
non-qualified stock option ("Option") to purchase Two Hundred Thousand (200,000)
shares of Common Stock, at an exercise price of $0.42 per share. This Option is
designated a non-qualified stock option and shall become exercisable according
to Paragraph 2 below.
2. Vesting. Except as otherwise provided herein, the Option may be exercised in
accordance with the vesting schedule set forth on Schedule I attached hereto and
incorporated herein ("Schedule I"), and the Option may only be exercised at any
given time to the extent that the Option has vested in accordance with Schedule
I.
3. Exercisability of the Option. Once vested, this Option shall become
exercisable with respect to the vested portion of the Option pursuant to the
terms of this Agreement.
4. Term of Option. This Option shall have a term of ten (10) years from the
Date of Grant (the "Expiration Date") and shall terminate and become
unexercisable at the expiration of that period, unless it is terminated at an
earlier date pursuant to the provisions of this Agreement or the Plan.
5. Exercise Procedures.
(a) Subject to the provisions of Paragraphs 3 and 4 above, the Participant
may exercise part or all of the exercisable portion of this Option by giving the
Committee written notice of intent to exercise in the manner provided in this
Agreement, with such notice specifying the number of whole shares of Common
Stock as to which this Option is to be exercised. On the delivery date of the
notice, the Participant shall pay the exercise price (i) in cash, (ii) with the
prior written approval of the Committee, by delivering Common Stock of the
Company with a Fair Market Value on the date of delivery which is equal to the
exercise price, (iii) with the prior written approval of the Committee, through
the surrender of Common Stock then issuable upon exercise of all or a portion of
this Option having a Fair Market Value equal to the exercise price, or (iv) by
such other method of payment provided in the Plan as the Committee may approve.
The Committee may, but shall not be required to, delay payment of the exercise
price for up to thirty (30) days from the date this Option is exercised. The
Committee may impose from time to time such limitations as it deems appropriate
on the use of Common Stock of the Company to exercise this Option. An exercise
of this Option shall not be for less than 10,000 shares of Common Stock or all
of the shares of Common Stock subject to the Option if less than 10,000 shares
of Common Stock remain under the Option.
(b) The obligation of the Company to deliver Common Stock upon exercise of
this Option shall be subject to all applicable laws, rules and regulations and
such approvals by governmental agencies as may be deemed appropriate by the
Committee, including such actions as Company counsel shall deem necessary or
appropriate to comply with relevant securities laws and regulations. The Company
may require that the Participant represent that the Participant is purchasing
the Common Stock for the Participant's own account and not with a view to or for
sale in connection with any distribution of the Common Stock, or such other
representations as the Committee deems appropriate. All obligations of the
Company under this Agreement shall be subject to the rights of the Company, as
set forth in the Plan, to withhold amounts required to be withheld for any
taxes, if applicable. Subject to Committee prior written approval, the
Participant may elect to satisfy any income tax withholding obligation of the
Company with respect to this Option by having shares of Common Stock withheld up
to an amount that does not exceed the minimum applicable withholding tax rate
for federal (including FICA), state and local tax liabilities.
(c) The Participant understands that the certificate(s) representing the
shares of Common Stock acquired pursuant to this Option may bear a legend
referring to the fact that the Common Stock have not been registered under the
Securities Act, and has not been qualified under any state securities law, and
is subject to certain restrictions on transfer and other limitations under the
Securities Act and state securities laws with respect to the transfer of such
shares of Common Stock, and the Company may impose stop transfer instructions to
implement such limitations, if applicable. Any person entitled to exercise this
Option under the provisions of Paragraph 8 hereof shall be bound and obligated
under the provisions of this Paragraph 5 to the same extent as is the
Participant.
6. Effect of Change in Control. Upon the occurrence of a Change in Control, the
Option shall automatically vest in full as to 100% of all Shares as to which the
Option is not vested as of the date of such Change in Control. A "Change in
Control" of the Company shall be deemed to have occurred if either:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) who did
not own shares of the capital stock of the Company on the date of this Agreement
shall, together with his, her or its "Affiliates" and "Associates" (as such
terms are defined in Rule 12b-2 promulgated under the Exchange Act), become the
"Beneficial Owner" (as such term is defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of the Company representing
fifty percent 50% or more of the combined voting power of the Company's then
outstanding securities (any such person being hereinafter referred to as an
"Acquiring Person");
(b) The "Continuing Directors" shall cease to constitute a majority of the
Board ("Continuing Director" shall mean any person who is a member of the Board,
while such person is a member of the Board, who is not an Acquiring Person, an
Affiliate or Associate of an Acquiring Person or a representative of an
Acquiring Person or of any such Affiliate or Associate and who (i) was a member
of the Board on the date hereof or (ii) subsequently became a member of the
Board, upon the nomination or recommendation, or with the approval of, a
majority of the Continuing Directors); or
(c) There should occur (i) any consolidation or merger involving the
Company and the Company shall not be the continuing or surviving corporation or
the shares of the Company's capital stock shall be converted into cash,
securities or other property; provided, however, that this subclause (i) shall
not apply to any merger or consolidation in which (A) the Company is the
surviving corporation and (B) the shareholders of the Company immediately prior
to the transaction have the same proportionate ownership of the capital stock of
the surviving corporation immediately after the transaction; (ii) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company; or (iii)
any liquidation or dissolution of the Company.
7. Changes in Common Stock or Assets of the Company, Acquisition or Liquidation
of the Company and other Corporate Events. The provisions of the Plan applicable
to changes in Common Stock or assets of the Company, the acquisition or
liquidation of the Company or other corporate events, shall apply to this
Option, and, in the event of an occurrence described in the Plan, the Committee
may take such actions as it deems appropriate pursuant to the Plan.
8. Restrictions on Exercise. Only the Participant may exercise this Option
during the Participant's lifetime, and upon the death of the Participant, by his
personal representative or by any person empowered to do so under his will or
under the then applicable laws of descent and distribution.
9. Option Subject to Plan Provisions. This Option is made pursuant to the Plan,
the terms of which are incorporated herein by reference (including but not
limited to the right to amend or terminate the Plan), and in all respects shall
be interpreted in accordance with the Plan, as in effect from time to time. This
Option and exercise of this Option are subject to the provisions of the Plan and
to interpretations, regulations and determinations concerning the Plan
established from time to time by the Committee in accordance with the provisions
of the Plan, including, but not limited to, provisions pertaining to (a) rights
and obligations with respect to withholding taxes, (b) the registration,
qualification or listing of the Common Stock, (c) changes in capitalization of
the Company, and (d) other requirements of applicable law. The Committee shall
have the sole authority and discretion to interpret and construe this Option
pursuant to the terms of the Plan, and its decisions shall be conclusive as to
any questions arising hereunder.
10. No Employment or Other Rights. This Option shall not confer upon the
Participant any right to be retained by, or in the employ of, the Company and
shall not interfere in any way with the right of the Company to terminate the
Participant's employment or service at any time. The right of the Company to
terminate at will the Participant's employment at any time for any reason is
specifically reserved, subject to any employment agreement entered into by the
Company and the Participant.
11. No Shareholder Rights. The Participant shall not have any of the rights and
privileges of a stockholder of the Company with respect to the shares of Common
Stock subject to this Option, until certificates for shares of Common Stock have
been issued upon the exercise of this Option.
12. Assignment and Transfers. The rights and interests of the Participant under
this Agreement may not be sold, assigned, encumbered or otherwise transferred.
In the event of any attempt by the Participant to alienate, assign, pledge,
hypothecate, or otherwise dispose of this Option or any right hereunder, except
as provided for in this Agreement or the Plan, or in the event of the levy or
any attachment, execution or similar process upon the rights or interests hereby
conferred, the Company may terminate this Option by notice to the Participant,
and this Option and all rights hereunder shall thereupon become null and void.
The rights and protections of the Company hereunder shall extend to any
successors or assigns of the Company and to the Company's parents, subsidiaries,
and affiliates. This Agreement may be assigned by the Company to a successor
entity without the Participant's consent.
13. Applicable Law. The validity, construction, interpretation and effect of
this instrument shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to the conflicts of laws
provisions thereof.
14. Notice. Any notice to the Company provided for in this instrument shall be
addressed to the Company in care of the Compensation Committee of the Board of
Directors, and any notice to the Participant shall be addressed to such
Participant at the current address shown on the payroll of the Company, or to
such other address as the Participant may designate to the Company in writing.
Any notice shall be delivered by hand, sent by telecopy or enclosed in a
properly sealed envelope addressed as stated above, registered and deposited,
postage prepaid, in a post office regularly maintained by the United States
Postal Service.
15. No Personal Liability. The Participant agrees that no member of the
Committee or executive of the Company shall be personally liable for any actions
taken or not taken in good faith in connection with the Plan.
16. Capitalized Terms; Headings. Any capitalized terms used herein that are not
defined shall have the meaning ascribed to them in the Plan. The headings of
paragraphs in this Agreement are for convenience of reference only and shall not
affect its meaning or construction.
IN WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute and attest this Agreement, and the Participant has executed this
Agreement, effective as of the Date of Grant.
MONEY CENTERS OF AMERICA, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxxxxx
President
SCHEDULE I
Vesting Schedule
----------------
Date No. of Shares Vested
---- --------------------
Date of Grant 50,000
June 1, 2006 50,000
June 1, 2007 100,000
Provided that, (i) pursuant to Section 6 of this Agreement, upon the occurrence
of a Change in Control, the option shall automatically vest in full as to 100%
of all Shares as to which the option is not vested as of the date of such Change
in Control, (ii) if the Company terminates Participant's employment pursuant to
that certain Employment Agreement dated June 14, 2005 by and between the Company
and the Participant (the "Employment Agreement") without Good Cause or if
Participant effects a Termination with Good Reason (as such terms are defined in
Sections 1(d) and 1(e) of the Employment Agreement) the option shall
automatically vest in full as to 100% of all Shares as to which the option is
not vested as of the date of such termination, and (iii) upon the death or
Disability (as such term is defined in Section 1(a) of the Employment Agreement)
of the Participant, the option shall automatically vest in full as to 100% of
all Shares as to which the option is not vested as of the date of Participant's
death or the determination that Participant has a Disability.
