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EXHIBIT 10.35
ACE*COMM CORPORATION
AMENDED AND RESTATED OMNIBUS STOCK PLAN
AMENDED AND RESTATED 2000 NON-QUALIFIED STOCK OPTION GRANT AGREEMENT
This Agreement (this "Agreement") is entered into effective as of
October 26, 1999 (the "Grant Date"), by and between ACE*COMM Corporation, a
Maryland corporation (the "Company"), and Xxxxx X. Xxxxxx ("Grantee").
By executing this Agreement, the Company and the Grantee hereby
acknowledge that, except as otherwise expressly provided herein, this
Agreement supersedes any and all prior understandings or agreements between
the Grantee and the Company, whether written or oral, with respect to the
grant of options in the fiscal year ending June 30, 2000.
ARTICLE 1
GRANT OF OPTION
SECTION 1.1 GRANT OF OPTION. Subject to the terms and conditions
prescribed in the Agreement and pursuant to the provisions of the Plan, the
Company hereby grants to Grantee as of the Grant Date a Non-Qualified Stock
Option (the "Option") to purchase all or any part of 35,000 shares of Stock
(the "Option Shares") at an exercise price of $3.781 per share (the "Exercise
Price").
SECTION 1.2 TERM OF OPTION. Unless the Option granted pursuant to
Section 1.1 hereof terminates earlier pursuant to other provisions of the
Agreement, the Option shall expire at 5:00 p.m. Eastern Time on the day
following the tenth (10th) anniversary of its Grant Date.
ARTICLE 2
VESTING
SECTION 2.1 VESTING AND EXERCISABILITY. Unless the Option has earlier
terminated pursuant to the provisions of the Agreement, Grantee shall become
vested in the Option Shares in accordance with the schedule below; provided,
however, that Grantee shall have been in the continuous, full-time employ of
the Company from the Grant Date, through the applicable date below. To the
extent the Option is vested, it shall be exercisable for such number of Option
Shares which have vested, as follows:
Number of Option
Date Shares Vested to which Option is Exercisable
---- --------------------------------------------
October 23, 2000 10,000 shares
October 7, 2001 5,000 shares
or as to these 15,000 shares, such earlier date, following a "Change of
Control" (as defined in the
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Employment Agreement among the Company and the Grantee dated October 7, 1999
and amended as of March 31, 2000, (the "Employment Agreement")), as the
Grantee's employment has been terminated by the Company other than for "Cause"
(in accordance with Section 7.3(b) of the Employment Agreement) or by the
Grantee for "Good Reason" (in accordance with Section 7.4(a) of the Employment
Agreement).
Number of
Date Option Shares
---- -------------
October 26, 2005 6,667 shares
October 26, 2006 6,667 shares
October 26, 2007 6,666 shares
SECTION 2.2 ACCELERATION OF VESTING. [intentionally deleted]
ARTICLE 3
EXERCISE OF OPTION
SECTION 3.1 EXERCISABILITY OF OPTION. Except as otherwise provided
herein, no portion of the Option shall be exercisable by Grantee prior to the
time such portion of the Option has vested. Options to purchase Vested Option
Shares that have become exercisable shall remain exercisable throughout the
term of the Option, except as otherwise set forth in this Agreement, including
Article 4 hereof.
SECTION 3.2 ACCELERATION OF EXERCISABILITY. [intentionally omitted]
SECTION 3.3 MANNER OF EXERCISE. The exercisable portion of an Option
may be exercised, in whole or in part, by delivering written notice (an
"Exercise Notice") to the Committee in accordance with Section 5.8 hereof in
such form as the Committee may require from time to time; provided, however,
that an Option may not be exercised at any one time as to fewer than one
hundred (100) shares (or such number of shares as to which the Option is then
exercisable if such number of shares then exercisable is less than one hundred
(100)). Such Exercise Notice shall specify the number of shares of Stock
subject to the Option as to which the Option is being exercised, and shall be
accompanied by full payment of the Exercise Price of the shares of Stock as to
which the Option is being exercised and any applicable withholding taxes which
may be due. Payment of the Exercise Price and any withholding tax obligations
shall be made in cash (or cash equivalents acceptable to the Committee in the
Committee's discretion). In the Committee's sole and absolute discretion, the
Committee may authorize payment of the Exercise Price and any withholding tax
obligations to be made, in whole or in part, by such other means as the
Committee may prescribe. An Option may be exercised only in multiples of whole
shares and no partial shares shall be issued.
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The Committee, subject to such limitations as it may determine, may
authorize payment of the Exercise Price and any withholding tax obligations,
in whole or in part, by delivery of a properly executed Exercise Notice,
together with irrevocable instructions: (i) to a brokerage firm approved by
the Company to deliver promptly to the Company the aggregate amount of sale or
loan proceeds to pay the exercise price and any withholding tax obligations
that may arise in connection with the exercise, and (ii) to the Company to
deliver the certificates for such purchased shares directly to such brokerage
firm.
SECTION 3.4 ISSUANCE OF SHARES AND PAYMENT OF CASH UPON EXERCISE. Upon
exercise of an Option, in whole or in part, in accordance with the terms of
this Agreement, and upon payment of the Exercise Price and any withholding tax
obligations for the shares of Stock as to which the Option is exercised, the
Company shall issue to Grantee or Grantee's permitted transferee, as the case
may be, the number of shares of Stock so paid for, in the form of fully paid
and nonassessable Stock.
ARTICLE 4
TERMINATION OF OPTION
SECTION 4.1 TERMINATION OF EMPLOYMENT OR AFFILIATION FOR REASONS OTHER
THAN DEATH. Unless the Option has earlier terminated pursuant to the
provisions of the Agreement, such Option shall terminate in its entirety,
regardless of whether such Option is exercisable in whole or in part, three
(3) months after the date Grantee is no longer employed full-time by the
Company or its affiliates for any reason other than Grantee's death, but not
later than the end of the stated term of such Option.
Notwithstanding the foregoing, the Option shall terminate in its
entirety, regardless of whether such Option is exercisable in whole or in
part, upon termination of the employment of Grantee by the Company or an
affiliate for "Cause", as defined hereinafter. For purposes of this Section
4.1, "Cause" means the termination of Grantee's service with the Company or an
affiliate because of (i) a felony conviction of Grantee; (ii) the commission
by Grantee of an act of fraud or embezzlement against the Company; (iii)
willful misconduct by Grantee which is materially detrimental to the Company;
(iv) Grantee's continued failure to implement reasonable requests or
directions from his or her direct supervisor after written notice to Grantee;
(v) Grantee's wrongful dissemination of confidential or proprietary
information; (vi) the intentional and habitual neglect by Grantee of his or
her duties to the Company; or (vii) Grantee's breach of any contract or
agreement with the Company. The good faith determination by the Committee of
whether Grantee's employment was terminated by the Company for "Cause" shall
be final and binding for all purposes hereunder.
SECTION 4.2 UPON GRANTEE'S DEATH. Unless the Option has earlier
terminated pursuant to the provisions of the Agreement, upon Grantee's death
Grantee's executor, personal representative, the person to whom such Option
shall have been transferred by will or the laws of descent and distribution,
or other permitted transferee, as the case may be, may exercise an Option with
respect to all or any portion of the Vested Option Shares granted pursuant
thereto which are exercisable as of the Grantee's date of death, provided such
exercise occurs within one (1) year after the date of Grantee's death, but not
later than the end of the stated term of such Option.
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ARTICLE 5
MISCELLANEOUS
SECTION 5.1 NON-GUARANTEE OF EMPLOYMENT OR OTHER RELATIONSHIP. Nothing
in the Plan or the Agreement shall be construed as a contract of employment or
for services between the Company (or an affiliate) and Grantee, or as a
contractual right of Grantee to continued employment or affiliation with the
Company or an affiliate, or as a limitation of the right of the Company or an
affiliate to terminate its relationship with Grantee at any time.
SECTION 5.2 NO RIGHTS OF STOCKHOLDER. Grantee shall not have any of
the rights of a stockholder with respect to the shares of Stock that may be
issued upon the exercise of an Option until such shares of Stock have been
issued to him upon the due exercise of such Option.
SECTION 5.3 WITHHOLDING OF TAXES. The Company or any affiliate shall
have the right to deduct from any compensation or any other payment of any
kind (including withholding the issuance of shares of Stock) due Grantee the
amount of any federal, state or local taxes required by law to be withheld as
the result of the exercise of the Option; provided, however, that the value of
the shares of Stock withheld may not exceed the statutory minimum withholding
amount required by law. In lieu of such deduction, the Committee may require
Grantee to make a cash payment to the Company or an affiliate equal to the
amount required to be withheld. If Grantee does not make such payment when
requested, the Company may refuse to issue any stock certificate under the
Plan until arrangements satisfactory to the Committee for such payment have
been made.
SECTION 5.4 NONTRANSFERABILITY OF OPTION. Except as expressly
authorized by the Committee in writing, the Option shall be nontransferable
otherwise than by will or the laws of descent and distribution, and, during
the lifetime of Grantee, the Option may be exercised only by Grantee or,
during any period Grantee is under a legal disability, by Grantee's guardian
or legal representative.
SECTION 5.5 AGREEMENT SUBJECT TO CHARTER, BY-LAWS AND GOVERNING LAWS.
This Agreement is subject to the Charter and By-Laws of the Company, and any
applicable federal or state laws, rules or regulations, including without
limitation, the laws, rules, and regulations of the State of Maryland, other
than the conflict of laws principles thereof.
SECTION 5.6 GENDER AND NUMBER. As used herein and as the context
requires, any word in the singular shall extend to and include the plural, any
word used in the plural shall extend to and include the singular and any word
used in any gender shall include the other gender or be neuter.
SECTION 5.7 HEADINGS. The headings in the Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
the Agreement.
SECTION 5.8 NOTICES. All notices and other communications made or
given pursuant to the Agreement shall be in writing and shall be sufficiently
made or given if hand delivered or mailed by certified mail, addressed to
Grantee at the address contained in the records of the Company, or addressed
to the Committee, care of the Company for the attention of its Secretary at
its principal office or, if the receiving party consents in advance,
transmitted and received via telecopy or via such other electronic
transmission mechanism as may be available to the parties.
SECTION 5.9 ENTIRE AGREEMENT; MODIFICATION. This Agreement contains
the entire agreement between the parties with respect to the subject matter
contained herein and may not be modified, except as provided in the Plan or in
a written document signed by each of the parties hereto.
SECTION 5.10 CONFORMITY WITH PLAN. This Agreement is intended to
conform in all respects with, and is subject to all applicable provisions of,
the Plan, which is incorporated herein by reference. Unless stated otherwise
herein, capitalized terms in this Agreement shall have the same meaning as
defined in the Plan. Inconsistencies between this Agreement and the Plan shall
be resolved in accordance with the terms of the Plan. In the event of any
ambiguity in the Agreement or any matters as to which the Agreement is silent,
the Plan shall govern, as interpreted by the Committee in good faith.
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IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date first above written.
ATTEST: ACE*COMM CORPORATION
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman of the Board
WITNESS: GRANTEE
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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