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EXHIBIT 4
NON-QUALIFIED STOCK OPTION AGREEMENT
Non-Qualified Stock Option Agreement (this "Option
Agreement"), dated as of February 10, 2000 (the "Grant Date"), between IBS
Interactive, Inc. (the "Company") and Xxx X. Xxxxxxx III (the "Recipient").
WHEREAS, the Company intends to provide an incentive to the
Recipient in order to induce the Recipient to become an employee of the Company,
by providing the Recipient with opportunities to purchase shares of Common Stock
(as defined herein);
WHEREAS, the Board of Directors of the Company (the "Board")
or a duly constituted committee thereof has determined that it would be in the
best interest of the Company and its stockholders to grant the options provided
herein to the Recipient.
NOW, THEREFORE, in consideration of the covenants contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise indicated, whenever capitalized terms are
used in this Option Agreement, they shall have the meanings set forth below.
"Change of Control" shall mean an event whereby a person or
entity becomes the beneficial owner as calculated in accordance with Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended, of at least
50% of the then outstanding Common Stock.
"Committee" shall mean the Organization and Compensation
Committee, if any, of the Board.
"Common Stock" shall mean the common stock of the Company, par
value $.01.
"Disability" shall mean the inability of the Recipient to
perform in all material respects the Recipient's duties and responsibilities to
the Company, or any Subsidiary of the Company, by reason of a physical or mental
disability or infirmity which inability is reasonably expected to be permanent
and has continued (i) for a period of six consecutive months or (ii) such
shorter period as the Company may determine. The Recipient (or the Recipient's
representative) shall furnish the Company with satisfactory medical evidence
documenting the Recipient's disability or infirmity.
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"Fair Market Value" shall mean the average of the opening and
closing prices of the Common Stock for ten (10) consecutive trading days ending
three (3) trading days prior to the Grant Date.
"Option Shares" shall mean, with respect to the Recipient, (a)
any shares of Common Stock (or other shares of capital stock of the Company)
issuable or issued by the Company upon exercise of any Option by the Recipient
and (b) any shares of the capital stock of the Company issuable or issued in
respect of any of the securities described in clause (a) above, by way of stock
dividend, stock split, merger, consolidation, reorganization or other
recapitalization.
"Person" shall mean an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"Subsidiary" shall mean any corporation of which the Company
owns, directly or through one or more Subsidiaries, a fifty percent (50%) or
more equity interest in such corporation or has the right to nominate fifty
percent (50%) or more of the members of the board of directors or other
governing body of the corporation.
"Transfer" shall mean, with respect to any Option, the gift,
sale, assignment, transfer, pledge, hypothecation or other disposition (whether
for or without consideration and whether voluntary, involuntary or by operation
of law) of such Option or any interest therein.
ARTICLE II
GRANT OF OPTIONS
2.1 Grant of Options. The Recipient is hereby granted
Options representing the right to acquire 150,000 shares of Common Stock. Unless
otherwise indicated herein, references herein to "Options" means the Options
granted hereby.
2.2 Exercise Price. The Exercise Price of the Options
shall be the Fair Market Value of the Common Stock.
2.3 Changes in Common Stock. In the event of any change
in the outstanding shares of Common Stock by reason of any stock split, stock
dividend, recapitalization, merger, consolidation, combination or exchange of
shares or other similar corporate change or in the event of any special
distribution to the stockholders, the Committee shall make equitable adjustments
in the number of shares and prices per share applicable to Options then
outstanding.
2.4 Representation of the Company as to the Common Stock.
The Company represents and warrants to the Recipient that all of the Option
Shares to be issued upon the exercise of the Options pursuant to this Option
Agreement, when issued in accordance with the terms of this Option Agreement,
will be duly authorized and validly issued, fully paid and nonassessable.
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ARTICLE III
EXERCISABILITY OF OPTIONS
Options shall vest upon the earliest to occur of the events
described in Sections 3.1 or 3.2, but subject to the limitations set forth in
Section 3.4 and 3.5, and shall become exercisable as described in Section 3.3:
3.1 Time Vesting. If not sooner vested, Options granted
pursuant to this Option Agreement vest pursuant to the following schedule:
(a) 25% of such Options shall vest upon the commencement of the
Recipient's employment by the Company; and
(b) The remaining 75% of such Options shall vest ratably on the
first day of each calendar month for thirty-six (36) consecutive calendar months
commencing with the first full calendar month after the date of the commencement
of the Recipient's employment by the Company.
In the event that the calculation of the number of Options to vest at any given
time pursuant to this Section 3.1 results in a number which is not a whole
number, such number shall be rounded down to the nearest whole number.
3.2 Vesting upon Change in Control, Death, Disability or
Legal Incapacitation. If not sooner vested, all Options shall vest upon the
occurrence of a Change in Control, or the death, Disability, or legal incapacity
of the Recipient.
3.3 Exercise; Restriction on Exercise. No unvested
Options shall be exerciseable. All vested Options shall become exercisable at
the time they first vest and shall cease to be exercisable at the time they
expire as provided in Section 3.4 or Article V.
3.4 Effect of Termination of Employment, Expiration of
Unvested Options. Unless otherwise determined by the Board or the Committee,
unvested Options shall cease to vest and shall expire upon the Recipient's
ceasing to be employed by the Company or one of its Subsidiaries.
3.5 Failure to Commence Employment. In the event that the
Recipient has not commenced employment with the Company on or prior to April 15,
2000, this Option Agreement shall terminate in its entirety and shall be of no
force or effect.
ARTICLE IV
EXERCISE OF OPTIONS
4.1 Person Who Can Exercise. Options may only be
exercised by the Recipient, except that, in the event of Disability or legal
incapacitation, Options may be exercised by the Recipient's legal guardian or
legal representative and, in the event of death, Options may be exercised by the
executor or administrator of the Recipient's estate or the Person
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or Persons to whom the Recipient's rights under the Options pass by will or the
laws of descent and distribution.
4.2 Procedure for Exercise. Vested Options may be
exercised in whole or in part with respect to any portion thereof that is
exercisable. To exercise an Option, the Recipient (or such other Person who
shall be permitted to exercise the Option as set forth in Section 4.1) must
complete, sign and deliver to the Company an Exercise Notice together with
payment in full of the Exercise Price multiplied by the number of shares of
Common Stock with respect to which the Option is exercised. Payment of the
Exercise Price shall be made in cash (including check, bank draft or money
order). The right to exercise the Option shall be subject to the satisfaction of
all conditions set forth in the Exercise Notice. In lieu of paying the Exercise
Price, upon the Recipient's (or such other Person's) request, with the
Committee's or the Board's consent (which may or may not be given in its sole
discretion), the Company shall deliver to the Recipient a number of shares of
Common Stock equal to (A) divided by (B) where (A) is the positive difference
between (i) the Fair Market Value of a share of Common Stock on the date on
which the Exercise Notice is received by the Company (i.e., the exercise date),
and (ii) the Exercise Price, multiplied by (iii) the number of shares for which
the Option is being exercised, and (B) is the Fair Market Value of a share of
Common Stock on the exercise date.
4.3 Withholding of Taxes. The Company and its
Subsidiaries shall withhold from any amounts due and payable by the Company and
its Subsidiaries to the Recipient (or secure payment from the Recipient in lieu
of withholding) the amount of any withholding or other tax due from the Company
with respect to any Options Shares issuable under this Option Agreement, and the
Company may defer such issuance until such withholding or payment is made unless
otherwise indemnified to its satisfaction with respect thereto.
ARTICLE V
EXPIRATION OF OPTIONS
5.1 Expiration. Vested and unvested Options shall expire
at 5:00 p.m. Eastern Standard Time on the tenth anniversary of the Grant Date,
unless earlier cancelled pursuant to section 3.4 hereof.
5.2 Cancellation. Vested and unvested Options which
expire unexercised shall be treated as cancelled.
ARTICLE VI
MISCELLANEOUS
6.1 Options Not Transferable. Options may not be
Transferred (other than by will or laws of descent and distribution). Any
attempt to effect a Transfer of Options that is not permitted by this Option
Agreement shall be null and void.
6.2 No Employment Contract. Nothing in this Option
Agreement shall interfere with or limit in any way the right of the Company or
any of its Subsidiaries to terminate the Recipient's employment at any time, nor
confer upon any Recipient any right to continued
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employment by the Company or any of its Subsidiaries for any period of time or
to continue such employee's present (or any other) rate of compensation.
6.3 Notices. All notices, requests and demands to or upon
a party hereto must, to be effective, be in writing and shall be deemed to have
been duly given or made when delivered by hand or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows or to such other address of which the intended
receiving party hereto shall have been duly notified hereunder:
(a) If to the Company, to the following address:
IBS Interactive, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 0000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
(b) If to the Recipient, to the address or telecopy number as shown on the
signature page hereto.
6.4 Amendment. This Option Agreement may be amended only
by a writing executed by the parties hereto which specifically states that it is
amending this Option Agreement.
6.5 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New
Jersey applicable to contracts made and to be performed therein without regard
to the conflicts of law principles thereof.
6.6 Titles. Titles are provided herein for convenience
only and are not to serve as a basis for interpretation or construction of this
Option Agreement.
IN WITNESS WHEREOF, this Option Agreement has been executed
and delivered by the parties hereto.
XXX X. XXXXXXX III IBS INTERACTIVE, INC.
/s/ Xxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
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Signed Name: Xxxxxxxx X. Xxxxxxxx, Xx.
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Title: President & CEO
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Name: Xxx X. Xxxxxxx III
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Home Address:
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