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EXHIBIT 99.2
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 5th day of December, 1995 by and
between INTERNET AMERICA, INC. (the "Company") and XXXXXX XXXXX (the
"Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in the
number of Shares, or any change (including, but not limited to, a change
in value) in the Shares or exchange of Shares for a different number or
kind of Shares or other securities of the Company, by reason of a
reclassification, recapitalization, merger, consolidation, reorganization,
stock dividend, stock split or reverse stock split, combination or
exchange of shares or other similar events.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Company" means Internet America, Inc., a Texas corporation.
e. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
f. "Fair Market Value" on any date means the closing price of Shares
on such date on the principal national securities exchange on which Shares
are listed or admitted to trading, the arithmetic mean of the per Share
closing bid priced and per Share closing asked price on such date as
quoted on the National Association of Securities Dealers Automated
Quotation System or such then market in which such prices are regularly
quoted, or, if there have been no published bid or asked quotations with
respect to Shares on such date, the Fair Market Value shall be the value
established by the Board in good faith and in accordance with Section 422
of the Code.
g. "Shares" means the common stock, par value $.01 per share, of the
Company.
2. Grant of Option. The Company hereby grants to the Optionee, for valuable
consideration, receipt of which is hereby acknowledged, a Non-Qualified Stock
Option ("Option") to purchase from the Company an aggregate of 5,000 Shares at a
purchase price (the "Option Price") of $3.75 per share.
3. Exercise Period. The Option shall become non-forfeitable according to
the following schedule and shall hereafter be exercisable in whole or in part:
First Installment: With respect to 500 shares, on December 25, 1996
Second Installment: With respect to 1,500 shares, on December 25, 1997
Third Installment: With respect to 1,500 shares, on December 25, 1998
Third Installment: With respect to 1,500 shares, on December 25, 1999
The Option may be exercised only with respect to full Shares and may not be
exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
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4. Exercise of an Option. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor. The purchase price for any Shares
purchased pursuant to the exercise of an Option shall be paid in full upon such
exercise by delivery of cash or personal check in amount of purchase price. The
written notice may provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares purchased
pursuant to the exercise of an Option, the Company shall issue such Shares
directly to the broker or dealer. If requested by the Board, the Optionee shall
deliver this Agreement to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in Capitalization,
the number and class of Shares or other stock or securities which are
subject to the Option, and the purchase price therefor, if applicable,
shall be appropriately and equitably adjusted.
b. If, by reason of a Change in Capitalization, the Optionee shall
be entitled to exercise an Option with respect to new, additional or
different shares of stock or securities, such new, additional or
different shares shall thereupon be subject to all of the conditions
which were applicable to the Shares subject to the Option, as the case
may be, prior to such Change in Capitalization.
7. Effect of Certain Transactions.
In the event of (i) the liquidation or dissolution of the
Company or (ii) a merger or consolidation of the Company (a "Transaction"), the
Option issued hereunder shall continue in effect in accordance with its terms
and the Optionee shall be entitled to receive in respect of each Share subject
to any outstanding Option, upon exercise of any Option, the same number and kind
of stock, securities, cash, property, or other consideration that each holder of
a Share was entitled to receive in the Transaction in respect of a Share. In the
event that, after a Transaction, there occurs any Change in Capitalization with
respect to the shares of a surviving or resulting corporation, then adjustments
similar to, and subject to the same conditions as, those in Section 6 hereof
shall be made by the Board.
8. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement, the
Optionee shall forfeit 100% of the Options granted pursuant to this
Agreement, whether or not vested, if the Optionee breaches the
provisions of subsections (b) or (d) of this Section 9.
b. During the period that the Optionee is employed by the Company or
any affiliate of the Company (the "Service Term") and for a period of
one year thereafter, the Optionee shall not, in the continental United
States, directly or indirectly, own, manage, operate, join, control, be
employed by, or participate in the ownership, management, operation or
control of or be connected in any manner, including but not limited to
holding the positions of shareholder, director, officer, consultant,
independent contractor, employee, partner, or investor, with any
Competing Enterprise. For purposes of this Section,
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the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in the operation of an internet
service provider. The prohibition of this Section 9 shall not be deemed
to prevent Optionee from owning 2% or less of any class of equity
securities registered under Section 12 of the Exchange Act. During the
Service Term and for a period of one year thereafter, the Optionee
shall not interfere with the Company's relationship with, or endeavor
to entice away from the Company, any person who at any time during the
Service Term was an employee or customer of the Company or otherwise
had a material business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of
such protection, has been carefully considered by the parties hereto in
light of the uniqueness of the Optionee's talent and his importance to
the Company. Accordingly, the Optionee agrees that, in addition to any
other relief to which the Company may be entitled, the Company shall be
entitled to seek and obtain injunctive relief (without the requirement
of any bond) from a court of competent jurisdiction for the purpose of
restraining the Optionee from any actual or threatened breach of the
covenant contained in this Section 9. If for any reason a final decision
of any court determines that the restrictions under this Section 9 are
not reasonable or that consideration therefor is inadequate, such
restrictions shall be interpreted, modified or rewritten by such court
to include as much of the duration, scope and geographic area identified
in this Section 9 as will render such restrictions valid and
enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information relating to the confidential affairs of the
company or any of its affiliates, including but not limited to technical
information, business and marketing plans, strategies, customer
information, other information concerning the Company's products,
promotions, development, financing, expansion plans, business policies
and practices, and other forms of information considered by the Company
to be confidential and in the nature of trade secrets. The Optionee
shall hold as property of the Company and its affiliates all memoranda,
books, papers, letters and other data, and all copies thereof or
therefrom, which are in any way substantially related to the business of
the company or its affiliates, whether made by him or otherwise coming
into his possession and, on a prior written demand of the Company made
within two years after the end of the Service Term, shall deliver the
same to the company.
9. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Board.
b. The Company shall have the right to deduct from any distribution
of cash to Optionee, an amount equal to the federal, state and local
income taxes and other amounts as may be required by law to be withheld
(the "Withholding Taxes") with respect to any Option. If Optionee is
entitled to receive Shares upon exercise of an Option, the Optionee
shall pay the Withholding Taxes to the Company prior to the issuance, or
release from escrow, of such Shares. In satisfaction of the Withholding
Taxes to the Company, the Optionee may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the
Board, to have withheld a portion of the Shares issuable to him or her
upon exercise of the Option having an aggregate Fair Market Value, on
the date preceding the date of exercise, equal to the Withholding Taxes,
provided that in respect of an Optionee who may be subject to liability
under Section 16(b) of the Exchange Act either (i)(A) the Optionee makes
the Tax Election at least six (6) months after the date the Option was
granted, (B) the Option is exercised during the ten day period beginning
on the third business day and ending on the twelfth business day
following the release for publication of the Company's quarterly or
annual statements of earnings (a "Window Period") and (C the Tax
Election is made during the Window Period in which the Option is
exercised prior to such Window Period and subsequent to the immediately
preceding Window Period or (ii)(A) the Tax Election
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is made at least six (6) months prior to the date the Option is
exercised prior to the expiration of six (6) months following an
election to revoke the Tax Election. Notwithstanding the foregoing, the
Board may, by the adoption or rules or otherwise, (i) modify the
provisions in the preceding sentence or impose such other restrictions
or limitations on Tax Elections as may be necessary to ensure that the
Tax Elections will be exempt transactions under Section 16(b) of the
Exchange Act, an (ii) permit Tax Elections to be made at such other
times and subject to such other conditions as the Board determines will
constitute exempt transactions under Section 16b of the Exchange Act.
c. If Optionee makes a disposition, within the meaning of Section
424(c)of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an Option
within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the date
of transfer of such Share or Shares to the Optionee pursuant to such
exercise, the Optionee shall, within ten (10) days of such disposition,
notify the Company thereof, by delivery of written notice to the Company
at its principal executive office, and immediately deliver to the
Company the amount of Withholding Taxes.
d. No Option granted hereunder shall be transferable by the Optionee
to whom granted otherwise than by will or the laws of descent and
distribution, and an Option may be exercised during the lifetime of such
Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such an Option shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
INTERNET AMERICA, INC.
/s/ XXXXXX X. XXXXXXX, XX.
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Xxxxxx X. Xxxxxxx, Xx.
Chief Executive Officer
OPTIONEE
/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
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