Execution Copy
InteliData Technologies Corporation
1991 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 24th day of February, 1998 (the
"Reset Date") by and between InteliData Technologies Corporation, a Delaware
corporation (the "Company"), and the Xxxx X. Xxxxxx, Xx. Irrevocable Trust dated
April 21st, 1995, Xxxx Xxxxxxx Xxxxxx, Trustee ("Optionee").
WITNESSETH:
RECITALS
A. On August 1, 1994 (the "Grant Date"), Xxxx X. Xxxxxx, Xx. ("Xxxxxx") was
granted three options under the US Order, Inc. 1991 Stock Option Plan (the
"Plan"). X. Xxxxxx transferred his rights under the Options with respect to
125,000 shares to Optionee.
C. On February 24, 1998, the Compensation Committee of the Company's Board of
Directors agreed to amend the terms of the Option held by Optionee.
D. Optionee and the Company wish to document the terms of the Option, as
amended, held by Optionee by this Agreement.
E. The Option is not intended to be an incentive stock option under Section 422
of the Internal Revenue Code.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to the terms and conditions set forth in
this Agreement and the Plan, Optionee holds a Nonqualified Stock Option (the
"Option") to purchase up to 125,000 shares of the Company's common stock, $0.001
par value (the "Option Shares") from time to time during the term of the Option
at an exercise price of $1.80 per share. The Company acknowledges and agrees
that in the event of any split-off, spin-off or similar corporation
reorganization pursuant to which any division, business or assets of the Company
are distributed to its shareholders, the number of Option Shares covered hereby
shall be adjusted in accordance with Section 3 of the Plan.
2. Option Term. The Option will expire at the close of business on
August 1, 2004 (the "Expiration Date"), unless sooner terminated in accordance
with the provisions of this Agreement or the Plan.
3. Option Nontransferable. The Option is not transferable or assignable
by Optionee other than by will or by the laws of descent and distribution
provided that Optionee may transfer the Option in whole or in part from time to
time, for no consideration, to Optionee's children, grandchildren, spouse, one
or more trusts for the benefit of such family members or one or more
partnerships in which such family members are the only partners (collectively,
"Permitted Transferees"). During the lifetime of Optionee, the Option shall be
exercisable only by Optionee or a Permitted Transferee.
4. Dates of Exercise. The Option will be exercisable as to the
Option Shares within the specified term of the Option and pursuant to the
provisions of this agreement.
5. Termination of Employment.
(a) Except as provided in Section 5(b), should Xxxxxx cease to
be employed by the Company as its President and Chief Executive Officer (other
than by reason of termination for Cause, as defined below), the Option will
remain exercisable until the Expiration Date.
(b) Should Xxxxxx be discharged for Cause by the Company or
any other member of the Group, or should Xxxxxx cease to be an employee for any
reason following receipt of notice of the intent of the Company or any other
member of the Group to discharge Xxxxxx for Cause, the term of the Option shall
immediately terminate (and the Option shall cease to be exercisable) upon the
earlier of such notice or cessation of employment.
6. Privilege of Stock Ownership. Optionee or a Permitted Transferee
will have none of the rights of a shareholder with respect to the Option Shares
until Optionee or Permitted Transferee has exercised the Option and has been
issued a stock certificate for the Option Shares.
7. Manner of Exercising Option. In order to exercise the Option with
respect to all or any part of the Option Shares for which the Option is at the
time exercisable, Optionee or a Permitted Transferee (or in the case of exercise
after Optionee's death, Optionee's executor, administrator, heir or legatee, as
the case may be) must take the following actions:
(i) Provide the Company written notice of such exercise in
accordance with Section 16 hereof, specifying the
number of Option Shares with respect to which the
Option is being exercised;
(ii) Pay the aggregate exercise price for the purchased
shares in one or more of the following alternative
forms: (A) full payment, in cash or by check payable to
the Company's order, in the amount of the exercise
price for the Option Shares being purchased; (B) full
payment in shares of Common Stock (held for at least
six months if acquired pursuant to an option) and
having a Fair Market Value on the day of exercise (as
determined under the terms of the Plan) equal to the
exercise price for the Option Shares being purchased;
(C) a combination of such shares of Common Stock and
cash or check payable to the Company's order, equal in
the aggregate to the exercise price for the Option
Shares being purchased; or (D) delivery of a properly
executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the
Company the amount of sale or loan proceeds to pay the
exercise price; and
(iii) Furnish the Company with appropriate documentation
that the person (or persons) exercising the Option, if
other than Optionee, has the right to exercise the
Option.
8. Effect of a Change in Control.
(a) The Option Shares issuable upon exercise of the Option
shall be subject to adjustment in accordance with Section 3 of the Plan in the
event of a Change in Control (as defined in Section 8(b)), that affects the
Company's Common Stock, $.001 par value per share, as a result of such Change in
Control. Following a Change in Control, Optionee shall have the right to cause
the successor entity to the Company to purchase all or any portion of the Option
at the fair value thereof on the date of termination, determined using the
Black-Scholes option-pricing model with the following weighted-average
assumptions: dividend yield of 0%; expected volatility equal to the beta for the
Company's Common Stock, $.001 par value per share, for the immediately preceding
twelve month period; expected life equal to the remaining term of the Option;
and a risk-free interest rate equal to the "prime rate" as set forth in the
Money Rates section of the Wall Street Journal as of the date of termination.
(b) For purposes of this Section 8, a "Change in Control"
shall be deemed to have occurred if the conditions set forth in any one of the
following paragraphs shall have been satisfied:
(i) any Person is or becomes the Beneficial Owner (as
defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), directly or
indirectly, of securities of the Company (not including
securities beneficially owned by such Person or any
securities acquired directly from the Company or any of
its affiliates) representing more than 50% of the
combined voting power of the Company's then outstanding
securities; or
(ii) during any period of two (2) consecutive years (not
including any period prior to the execution of this
Agreement), individuals who at the beginning of such
period constitute the Board and any new director (other
than a director designated by a Person who has entered
into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) of
this Section 8(b)) whose election by the Board of
nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were
directors at the
beginning of the period or whose election or nomination
for election was previously so approved, cease for any
reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other
corporation, other than (A) a merger or consolidation
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or being converted into voting securities
of the surviving entity), in combination with the
ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the
Company or any of its affiliates, at least 50% of the
combined voting power of the voting securities of the
Company or such surviving entity outstanding
immediately after such merger or consolidation, or (B)
a merger or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person acquires more than 50%
of the combined voting power of the Company's then
outstanding securities; or
(iv) the shareholders of InteliData approve a plan of
complete liquidation of InteliData or an agreement for
the sale or disposition by InteliData of all or
substantially all of its assets.
For purposes of this Section, "Person" shall have the meaning given in
Section (3)(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof; however, a Person shall not include (i) the Company or any of
its subsidiaries or affiliates, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its
subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(c) In the event that any payment to Optionee under this
paragraph is subject to any federal or state excise tax, the Company shall pay
to Optionee an additional amount equal to any such excise tax imposed, pursuant
to the terms of the Employment Agreement.
(d) The Company shall pay to Optionee all reasonable legal
fees and expenses incurred by Optionee as a result of seeking in good faith
after a Change in Control to obtain or enforce any benefit or right provided by
this Agreement. Such payments shall be made within ten (10) business days after
delivery of Optionee's written request for payment accompanied with such
evidence of fees and expenses incurred as the Company reasonably may require.
9. Compliance with Laws and Regulations.
(a) The exercise of the Option and the issuance of Option
Shares upon such exercise is subject to compliance by the Company and Optionee
with all applicable requirements of law relating thereto and with all applicable
regulations of any stock exchange on which shares of the Company's common stock
may be listed at the time of such exercise and issuance.
(b) In connection with the exercise of the Option, Optionee
will execute and deliver to the Company such representations in writing as may
be requested by the Company so that it may comply with the applicable
requirements of federal and state securities laws.
10. Liability of the Company.
(a) If the Option Shares exceed, as of the Grant Date, the
number of shares that may without shareholder approval be issued under the Plan,
then this Option will be void with respect to such excess shares unless
shareholder approval of an amendment sufficiently increasing the number of
shares issuable under the Plan is obtained in accordance with the provisions of
the Plan.
(b) The inability of the Company to obtain approval from any
regulatory body having authority deemed by the Company to be necessary to the
lawful issuance and sale of any common stock pursuant to the Option will relieve
the Company of any liability with respect to the non-issuance or sale of the
common stock as to which such approval is not obtained.
11. Withholding.
(a) To the extent federal, state and local income and
employment tax withholding requirements should apply to the exercise of this
Option, Optionee hereby agrees to make appropriate arrangements with the Company
for the satisfaction of such withholding requirements.
(b) Subject to approval of the Committee, any withholding
obligation arising from exercise of the Option may be satisfied by any of the
following means or by a combination of such means: (i) tendering a cash payment;
(ii) authorizing the Company to withhold from the Common Stock otherwise
issuable to Optionee as the result of the exercise of the Option, a number of
shares having a Fair Market Value, as of the date the withholding tax obligation
arises, less than or equal to the amount of the withholding tax obligation; or
(iii) delivering to the Company already owned and unencumbered shares of Common
Stock having a Fair Market Value, as of the date the withholding tax obligation
arises, less than or equal to the amount of the withholding tax obligation.
12. Other Restrictions. Upon any exercise of the Option, the Committee
may require Optionee to represent to and agree with the Company in writing that
the shares are being acquired without a view to distribution thereof. The
certificates for such shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer determined
by the Committee to be necessary or appropriate under applicable securities
laws.
All certificates for shares of common stock delivered pursuant to
exercise of the Option shall be subject to such stock-transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations,
and other requirements of the Securities and Exchange Commission, any stock
exchange upon which the common stock is then listed, and any applicable federal
or state securities law, and the Committee may cause a legend or legends to be
put on any such certificate to make appropriate reference to such restrictions.
13. Definitions. Capitalized terms not otherwise defined herein shall
have the meaning ascribed to such terms in the Plan.
14. Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any of the provisions of this Agreement.
15. Notices. Any notice required to be given or delivered to the
Company under the terms of this Agreement will be in writing and addressed to
the Company in care of its Secretary at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000. Any notice required to be given or delivered to
Optionee will be in writing and addressed to Optionee at the address indicated
below Optionee's signature line on this Agreement. All notices will be deemed to
have been given or delivered upon personal delivery or upon deposit in the U.S.
mail, postage prepaid and properly addressed to the party to be notified.
16. Construction. This Agreement and the Option evidenced hereby are
made and granted pursuant to the Plan and are in all respects limited by and
subject to the express terms and provisions of the Plan. All decisions of the
Committee with respect to any question or issue arising under the Plan or this
Agreement will be conclusive and binding on all persons having an interest in
the Option.
17. Governing Law. The interpretation, performance, and enforcement of
this Agreement will be governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed in duplicate on its behalf by its duly authorized officer and
Optionee has also executed this Agreement in duplicate, all as of the day and
year indicated above.
InteliData Technologies Corporation
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chairman of the Board
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Trustee
Address: 0000-X Xxxxxxxxx
Xxxxxxx, XX 00000
