EXHIBIT 10.18
LOYALTYPOINT, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is entered into as of the
___ day of _____________, 200__ (the "Grant Date"), between LoyaltyPoint, Inc.
(the "Company") and _________________ (the "Employee").
WHEREAS, by action taken by the board of directors of the Company (the
"Board"), it has adopted the LoyaltyPoint, Inc. 2004 Stock Plan (the "Plan");
and
WHEREAS, by action taken by the Board or Plan Committee, it has been
determined that in order to enhance the ability of the Company to attract and
retain qualified employees, it has granted the Employee the right to purchase
common stock of the Company pursuant to stock options.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereafter set forth and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Incentive Stock Options.
(a) The Company irrevocably grants to the Employee, as a
matter of separate agreement and not in lieu of salary or other compensation for
services, the right and option (the "Options") to purchase all or any part of an
aggregate of ____________ shares of authorized but unissued or treasury common
stock of the Company (the "Shares") on the terms and conditions herein set
forth. The Shares shall be unregistered unless the Company voluntarily files a
registration statement covering such Shares with the Securities and Exchange
Commission.
(b) The Options are intended to be Incentive Stock Options
within the meaning of the Plan and Section 422 of the Internal Revenue Code of
1986 (the "Code").
(c) This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference); provided, however, in the event of
any conflict between the terms of this Agreement and the Plan, the terms of this
Agreement shall govern.
2. Price. The exercise price of the Shares subject to the Options
shall be $______ per share.
3. Vesting-When Exercisable / Term.
(a) The Options shall vest and become exercisable with respect
to twenty-five percent (25%) of the Shares on the one-year anniversary of the
Option's Grant Date, and thereafter, with respect to six and one-quarter percent
(6.25%) of the Shares on each successive three (3) month anniversary following
the one-year anniversary of the Option's Grant Date (each, a "Vesting Date");
provided, however, the Employee remains employed by the Company or any of its
subsidiaries on each applicable Vesting Date. In lieu of fractional vesting, the
number of Options shall be rounded up each time until fractional Options are
eliminated.
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(b) The Options shall be exercisable (subject to the vesting
provisions provided for herein) for a period of five (5) years from the Grant
Date, unless sooner terminated pursuant to this Agreement.
(c) However, notwithstanding any other provision of this
Agreement, all Options, whether vested or unvested shall be immediately
forfeited in the event of:
(1) Termination for cause under any written
agreement, or if there is none, for wrongdoing relating to the Company or any of
its subsidiaries including fraud, theft, dishonesty or violation of Company
policy;
(2) Purchasing or selling securities of the
Company without written authorization if required by the Company's inside
information guidelines then in effect or otherwise violating the guidelines;
(3) Breaching any duty of confidentiality to the
Company;
(4) Competing with the Company;
(5) Being unavailable for consultation after
leaving the Company's employ if such availability is a condition of any
agreement between the Company and the Employee;
(6) Recruitment of Company personnel after
termination of employment, whether such termination is voluntary or for cause;
or
(7) Failure to assign any invention or
technology to the Company if such assignment is a condition of employment or any
other agreements between the Company and the Employee.
4. Termination of Relationship.
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(a) If for any reason, except death or disability as provided
below, the Employee ceases to act as an employee of the Company or any of its
subsidiaries, all rights granted hereunder shall terminate effective three (3)
months from the date the Employee ceases to act as an employee, except as
otherwise provided for herein.
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(b) If the Employee shall die while an employee of the Company
or any of its subsidiaries, his or her estate or any Transferee, as defined
herein, shall have the right within three (3) months from the date of the
Employee's death to exercise the Employee's vested Options, subject to Section
3(c). For the purpose of this Agreement, "Transferee" shall mean a person to
whom such Shares are transferred by will or by the laws of descent and
distribution.
(c) No transfer of the Options by the Employee by will or by
the laws of descent and distribution shall be effective to bind the Company
unless the Company shall have been furnished with written notice thereof and a
copy of the letters testamentary or such other evidence as the Board may deem
necessary to establish the authority of the estate and the acceptance by the
Transferee or Transferees of the terms and conditions of the Options.
(d) If the Employee becomes disabled while employed by the
Company within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986, the three (3) month period referred to in Section 4(a) of this Agreement
shall be extended to one year.
(e) Notwithstanding anything contained in this Section 4, an
Option may not be exercised later than the Option's expiration date set forth in
Section 3(b).
5. Profits on the Sale of Certain Shares; Redemption. If any of
the events specified in Section 3(c) of this Agreement occur within one (1) year
from the last date of employment (the "Termination Date") (or such longer period
required by any written employment agreement), all profits earned from the sale
of the Company's securities, including the sale of Shares underlying the Options
during the two-year period prior to the Termination Date shall be forfeited and
forthwith paid by the Employee to the Company. Further, in such event, the
Company may at its option redeem any Shares acquired upon exercise of Options
which have not been sold. The Company's rights under this Section 5 do not lapse
one (1) year from the Termination Date but are a contract right subject to any
appropriate statutory limitation period.
6. Method of Exercise. The Options shall be exercisable by a
written notice which shall:
(a) state the election to exercise the Options, the number of
Shares for which the Options are being exercised, the person in whose name the
stock certificate or certificates for such Shares is to be registered, his or
her address and social security number (or if more than one, the names,
addresses and social security numbers of such persons);
(b) contain such representations and agreements as to the
holder's investment intent with respect to such Shares as set forth in Section
11 hereof;
(c) be signed by the person or persons entitled to exercise
the Options and, if the Options are being exercised by any person or persons
other than the Employee, be accompanied by proof, satisfactory to counsel for
the Company, of the right of such person or persons to exercise the Options; and
(d) be accompanied by full payment of the purchase or exercise
price therefor in United States dollars by check or wire transfer.
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The certificate or certificates for Shares as to which the Options
shall be exercised shall be registered in the name of the person or persons
exercising the Options.
7. Sale of Shares Acquired Upon Exercise of Options. Any Shares
acquired pursuant to Options granted hereunder can be publicly sold by the
Employee in compliance with the Securities Act of 1933 (the "Securities Act"),
subject to effectiveness of a Form S-8 which is anticipated to be filled with
the Securities Exchange Commission on or after the filing of the Form 10-KSB for
the year ended December 31, 2004.
8. Anti-Dilution Provisions. The Options granted hereunder shall
have the anti-dilution rights set forth in the Plan.
9. Necessity to Become Holder of Record. Neither Employee nor his
or her estate, as provided in Section 4(c), shall have any rights as a
stockholder with respect to any Shares covered by the Options until such person
shall have become the holder of record of such Shares. No adjustment shall be
made for cash dividends or cash distributions, ordinary or extraordinary, in
respect of such Shares for which the record date is prior to the date on which
he or she shall become the holder of record thereof.
10. Reservation of Right to Terminate Relationship. Nothing
contained in this Agreement shall restrict the right of the Company to terminate
the relationship of the Employee at any time, with or without cause. The
termination of the relationship of the Employee by the Company, regardless of
the reason therefor, shall have the results provided for in Sections 4 and 5 of
this Agreement.
11. Conditions to Exercise of Options. In order to enable the
Company to comply with the Securities Act and relevant state law, the Company
may require the Employee, his or her estate, or any Transferee, as a condition
of the exercising of the Options granted hereunder, to give written assurance
satisfactory to the Company that the Shares subject to the Options are being
acquired for his or her own account, for investment only, with no view to the
distribution of same, and that any subsequent resale of any such Shares either
shall be made pursuant to a registration statement under the Securities Act and
applicable state law which has become effective and is current with regard to
the Shares being sold, or shall be pursuant to an exemption from registration
under the Securities Act and applicable state law.
The Options are subject to the requirement that, if at any time the
Board shall determine, in its discretion, that the listing, registration, or
qualification of the Shares subject to the Options upon any securities exchange
or trading market or under any state or federal law, or the consent or approval
of any governmental regulatory body, is necessary as a condition of, or in
connection with the issue of Shares underlying the Options, the Options may not
be exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected.
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12. Acceleration of Vesting. Notwithstanding anything contained
herein to the contrary, the Employee shall fully vest in and have the right to
exercise the Options in the event of a Change in Control. For purposes of this
Section, a "Change in Control" is the sale, conveyance or disposition (in one or
a series of related transactions) of all or substantially all of the assets of
the Company, or a direct or indirect consolidation or merger of the Company with
or into any other corporate entity or corporate entities; provided, however,
that a consolidation or merger of the Company shall not be deemed to be a Change
in Control if (i) the other party (or, if more than one, one of the other
parties) to such transaction is a controlled affiliate of the Company or (ii)
following completion of the transaction, the holders of capital stock of the
Company immediately prior to the transaction own shares of the surviving
corporate entity, which represent a majority of the voting power of the
surviving corporate entity (it being understood that for purposes of this
Section 12, the phrase "majority of the voting power" of a corporate entity
shall mean a majority of all of the then outstanding capital stock of the
corporate entity having voting power).
13. Duties of Company. The Company shall at all times during the
term of Options:
(a) Reserve and keep available for issue such number of shares
of its authorized and unissued Shares as will be sufficient to satisfy the
requirements of this Agreement;
(b) Pay all original issue taxes with respect to the issue of
Shares pursuant hereto and all other fees and expenses necessarily incurred by
the Company in connection therewith;
(c) Use its best efforts to comply with all laws and
regulations which, in the opinion of counsel for the Company, shall be
applicable thereto.
14. Parties Bound by Plan. The Plan and each determination,
interpretation or other action made or taken pursuant to the provisions of the
Plan shall be final and shall be binding and conclusive for all purposes on the
Company and the Employee and his or her respective successors in interest. This
Agreement may be amended by the Board or Plan Committee, in its sole discretion,
to provide more favorable terms to the Employee, subject to the terms and
conditions of the Plan.
15. Severability. In the event any parts of this Agreement are
found to be void, the remaining provisions of this Agreement shall nevertheless
be binding with the same effect as though the void parts were deleted.
16. Arbitration. Any controversy, dispute or claim arising out of
or relating to this Agreement, or its interpretation, application,
implementation, breach or enforcement which the parties are unable to resolve by
mutual agreement, shall be settled by submission by either party of the
controversy, claim or dispute to binding arbitration in Atlanta, Georgia (unless
the parties agree in writing to a different location), before a single
arbitrator in accordance with the rules of the American Arbitration Association
then in effect. The decision and award made by the arbitrator shall be final,
binding and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
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17. Benefit. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their legal representatives, successors
and assigns.
18. Notices and Addresses. All notices, offers, acceptance and any
other acts under this Agreement (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressees in person, by Federal
Express or similar receipted delivery, or by facsimile delivery as follows:
The Employee: ___________________
___________________
___________________
Facsimile:
The Company: LoyaltyPoint, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted to, or from, as the case may be, the delivery in person or by
mailing.
19. Attorney's Fees. In the event that there is any controversy or
claim arising out of or relating to this Agreement, or to the interpretation,
breach or enforcement thereof, and any action or proceeding is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to a reasonable attorney's fee, costs and expenses.
20. Governing Law. This Agreement and any dispute, disagreement,
or issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or performance
shall be governed or interpreted according to the internal laws of the State of
Delaware without regard to choice of law considerations.
21. Oral Evidence. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
23. Additional Documents. The parties hereto shall execute such
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
24. Section or Paragraph Headings. Section headings herein have
been inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
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25. Notice of Disqualifying Disposition: To obtain certain tax
benefits afforded to incentive stock options under Section 422 of the Code,
Employee must hold the Shares issued upon the exercise of the Option for two
years after the Grant Date and one year from the date of exercise. Employee may
be subject to the alternative minimum tax at the time of exercise. Tax advice
should be obtained when exercising the Option and prior to the disposition of
the Shares issued upon the exercise of the Option. By accepting the Option,
Employee hereby agrees to promptly notify the Company's Chief Executive Officer
if Employee disposes of any of the Option Shares within one (1) year from the
date Employee exercises all or part of the Option or within two (2) years of the
Grant Date.
IN WITNESS WHEREOF the parties hereto have set their hand and seals the
day and year first above written.
WITNESSES: LOYALTYPOINT, INC.
_______________________________ By:_________________________________
Xxxx Xxxxxxxx,
Chief Executive Officer
EMPLOYEE
______________________________ ________________________________
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